     Case: 10-10158 Document: 00511366194 Page: 1 Date Filed: 01/31/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 31, 2011
                                     No. 10-10158
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAMON AVILA-ORTIZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:09-CR-39-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Ramon Avila-Ortiz was convicted of one charge of bulk cash smuggling and
was sentenced to serve to serve 24 months in prison and a three-year term of
supervised release. In this appeal, he argues that the district court abused its
discretion by rejecting his argument concerning the application of U.S.S.G.
§ 2X1.1(b)(1) to his case. Specifically, he contends that § 2X1.1 applies because
his offense conduct involved an attempt and § 2S1.3 is excluded from the
application note for § 2X1.1 listing guidelines that expressly cover attempts.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-10158 Document: 00511366194 Page: 2 Date Filed: 01/31/2011

                                  No. 10-10158

Additionally, he argues that he was entitled to application of three-level
reduction of § 2X1.1(b)(1) because the record does not support the district court’s
conclusion that he would have completed the offense but for his arrest.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Our
review of the record shows no error in connection with the district court’s denial
of the requested reduction. The plain language of both § 2X1.1 and § 2S1.3
supports the district court’s guidelines calculations. Further, the facts contained
in the record show that Avila-Ortiz had taken many significant steps towards
completion of the offense and had made substantial progress towards achieving
his illicit goal. See United States v. John, 597 F.3d 263, 283 (5th Cir. 2010).
Indeed, when he was arrested the only step left was for him to take his
unreported cash across the border, and there is nothing in the record to indicate
that anything save for arrest would have prevented him from completing this
task. Avila-Ortiz’s arguments are unavailing, and he has not shown that his
sentence is unreasonable. Mares, 402 F.3d at 519-20.
      The judgment of the district court is AFFIRMED.




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