     Case: 14-50964      Document: 00513058023         Page: 1    Date Filed: 05/28/2015




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

                                    No. 14-50964                                   FILED
                                  Summary Calendar                             May 28, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID ARTURO MARTINEZ-MONTALVO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:14-CR-17


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       David Arturo Martinez-Montalvo pleaded guilty, without the benefit of
a plea agreement, to illegal reentry and received a within-guidelines sentence
of 52 months of imprisonment to be followed by three years of supervised
release.    He now challenges his prison sentence, contending that it is
procedurally unreasonable and greater than necessary to achieve the purposes
of sentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-50964

      Martinez-Montalvo takes issue with the district court’s statement at
sentencing that his arguments led it to believe that “he does not really
understand and truly appreciate and accept the consequence of his actions,”
suggesting that the district court may have procedurally erred by improperly
finding that he did not accept responsibility for his actions and imposing a
higher sentence based on the decision to put forward mitigating facts.
Martinez-Montalvo did not object that any of the court’s remarks amounted to
procedural error; accordingly, our review is for plain error only. See United
States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012).            A district court
procedurally errs if, among other things, it bases its sentence on clearly
erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007).
      During his allocution, Martinez-Montalvo emphasized his youth at the
time of a prior burglary conviction, which was the basis for a 16-level
enhancement to his offense level, in an effort to convince the district court to
impose a sentence below the guidelines range. The court pointed out that
Martinez-Montalvo made the decision to illegally return to the United States,
the crime for which he was being sentenced, when he was an adult. Its remark
regarding   whether    Martinez-Montalvo       understood     and   accepted    the
consequences of his actions was a reference to Martinez-Montalvo’s attempt to
downplay    his   current    offense   while   emphasizing    mitigating    factors
surrounding his prior offense. Accordingly, Martinez-Montalvo has shown no
error, plain or otherwise.
      As for Martinez-Montalvo’s argument that his prison term is greater
than necessary to achieve the purposes of sentencing, because he objected to
the sentence in the district court, our review is for abuse of discretion. Gall,
552 U.S. at 51. However, he has not overcome the presumption that his within-




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                                  No. 14-50964

guidelines sentence is reasonable. See United States v. Jenkins, 712 F.3d 209,
214 (5th Cir. 2013).
      Contending that his sentence overstates the seriousness of his offense,
Martinez-Montalvo describes his illegal reentry as a mere trespass, but we
have rejected arguments that this characterization renders a within-guidelines
sentence unreasonable. See United States v. Juarez-Duarte, 513 F.3d 204, 212
(5th Cir. 2008). He also asserts that the application of the illegal reentry
Guideline resulted in a sentencing range that was too harsh because the
Guideline lacks an empirical basis and his burglary conviction was counted
against him twice.     However, though it was within the district court’s
discretion to determine that the Guideline generated an imprisonment range
that was too high for these reasons, see United States v. Gomez-Herrera, 523
F.3d 554, 557 n.1 (5th Cir. 2008), the court was not required to do so, see United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Next, Martinez-Montalvo contends that his sentence undermines respect
for the law and the need to provide just punishment because, he says, his
burglary offense had a greater effect than his illegal reentry on his guidelines
range. That his sentence took into account a prior burglary conviction does not
overcome the presumption of reasonableness because “Congress considers
illegal reentry into the United States subsequent to a conviction for an
aggravated felony an extremely serious offense punishable by up to twenty
years in prison.” Juarez-Duarte, 513 F.3d at 212.
      According to Martinez-Montalvo, a shorter prison term would have been
sufficient to effectuate the sentencing goals of deterrence and protecting the
public given that he received a significantly shorter sentence for a prior illegal
reentry offense and that he also was ordered to serve a term of supervised



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                                 No. 14-50964

release. However, nothing required the district court to impose a shorter
prison term for these reasons. See United States v. Lee, 358 F.3d 315, 328-29
(5th Cir. 2004) (holding that a district court is warranted in varying or
departing upward from the guidelines range based on the lack of deterrence
provided by prior lenient sentences). Moreover, even if a different sentence
could also have been appropriate, this does not establish that a 52-month
sentence is unreasonable. See United States v. York, 600 F.3d 347, 361-62 (5th
Cir. 2010).
      Finally, Martinez-Montalvo complains that the district court did not
properly account for his personal history and characteristics, specifically, that
when he committed the burglary, he was only 17 years old, was addicted to
drugs, and knew no one in the United States; he has rehabilitated himself by
overcoming his addictions and participating in educational and training
programs; and he returned to the United States to earn a better living. At
sentencing, Martinez-Montalvo and his attorney put forward all of these
arguments. The court heard and understood them, explaining that it found
them less than compelling in light of the fact that Martinez-Montalvo was an
adult who understood the consequences of reentering the country illegally.
Moreover, the court found that Martinez-Montalvo’s personal characteristics
were outweighed by the need for deterrence and to protect the public.
Martinez-Montalvo may disagree with the weight that the court gave to his
arguments, but we will not reweigh the sentencing factors. See United States
v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011).
      Martinez-Montalvo has failed to show that the district court did not
consider a factor that should have received significant weight, gave significant
weight to a factor it should have discounted, or made a clear error of judgment




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                             No. 14-50964

when it balanced the relevant factors.      See Jenkins, 712 F.3d at 214.
Accordingly, the judgment is AFFIRMED.




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