IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20061

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARTURO OVIEDO PEREZ, also known as Arturo Oviedo-Perez, also known as

Arturo Perez Oviedo, also known as Arturo Alvarado,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-466-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Arturo Oviedo Perez pled guilty to illegal reentry into the United States

following deportation subsequent to a conviction for an aggravated felony. See

8 U.S.C. § 1326. As the result of a 16-level enhancement of his base offense level

based on a 1992 drug trafficking conviction, Perez’s sentencing range was 41 to

51 months of imprisonment. See U.S.S.G. § 2L1.2(b)(1)(B). He was sentenced

to 41 months in prison and was given one month’s credit for time served.

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2011

Lyle W. Cayce

Clerk

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. 11-20061

On appeal, Perez reiterates his claim that the 16-level enhancement was

improper because his 1992 conviction was stale. Its consideration resulted in an

allegedly disproportionate sentence that was unreasonable and also violated the

Eighth Amendment’s prohibition against cruel and unusual punishment. Perez

contends for the first time on appeal that the use of a prior conviction to enhance

his sentence for his illegal reentry offense caused an unwarranted sentencing

disparity that violated the Equal Protection Clause, that the district court

should have considered a proposed amendment to the Sentencing Guidelines,

and that the district court failed to consider all of the sentencing factors in 18

U.S.C. § 3553(a). He suggests that he should have received a downward

departure or a variance.

We review sentences for reasonableness in light of the sentencing factors

of Section 3553(a). Gall v. United States, 552 U.S. 38, 46, 49-50 (2007). In doing

so, we ordinarily inquire “whether the trial court abused its discretion.” Rita v.

United States, 551 U.S. 338, 351 (2007). Our review is for plain error on any

issue raised for the first time on appeal. United States v. Mondragon-Santiago,

564 F.3d 357, 361 (5th Cir. 2009). Because Perez cannot prevail on any claim

even under the less deferential standard of review for abuse of discretion, it is

unnecessary to assign a standard of review for each of his arguments. See

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). 

We first conclude that Perez has abandoned three of his arguments by

failing to brief them. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987). The abandoned arguments are that the district

court should have based the sentence solely on a 30-day sentence Perez received

for driving while intoxicated in 2011, that a proposed amendment to the

Guidelines should have been considered, and that factors counseling in favor of

a downward departure were not adequately considered.

We find meritless the contention that the court did not consider the

Section 3553(a) factors. The district court expressly stated that it chose Perez’s

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sentence in light of those factors. We also infer consideration of those factors

because Perez’s sentence is “within a properly calculated Guideline range.” 

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). We reject that it was

an abuse of discretion to apply the enhancement of Section 2L1.2(b)(1)(B) at all. 

The district court was required to make the proper Guideline calculations and

consider the resulting sentencing range, else there would have been procedural

error. See Gall, 552 U.S. at 51. 

Perez also contends that the imposition of the 16-level enhancement based

on his 1992 conviction was unreasonable because he has not committed serious

crimes since that conviction. He relies on a Ninth Circuit opinion vacating an

enhancement for a conviction that occurred 25 years before the defendant's

unlawful reentry. United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.

2009). That court declined to hold that it was “per se unreasonable to apply the

enhancement when the conviction is too stale to be counted for purposes of the

criminal history.” Id. at 1054. After remarking on the limited scope of its

decision, the court reasoned that the defendant’s specific characteristics and his

subsequent lack of convictions listed in Section 2L1.2 made his 52-month

sentence unreasonable. Id. at 1058. 

The district court considered Amezcua-Vasquez but still found the sentence

imposed to be sufficient and not greater than necessary. The court expressed

concern that a lesser sentence would not deter this defendant from attempting

to make a second illegal reentry. Unlike Amezcua-Vasquez, Perez had evaded

detection by law enforcement for approximately a decade until he was convicted

of driving while intoxicated. In addition, Perez had four other drug convictions

that had not been reflected in his criminal history category. 

This court recently examined Amezcua-Vasquez before deciding that “the

staleness of a prior conviction used in the proper calculation of a

guidelines-range sentence does not render a sentence substantively

unreasonable,” nor does it “destroy the presumption of reasonableness that

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attaches to such sentences.” United States v. Rodriguez, No. 10-41188, 2011 WL

4640871, at *3 (5th Cir. Oct. 7, 2011). The district court sentenced Perez to the

low end of the Guideline range. Under our highly deferential review, there was

no error. A “sentencing judge is in a superior position to find facts and judge

their import under § 3553(a) with respect to a particular defendant.” United

States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The age of

Perez’s conviction does not make this sentence substantively unreasonable.

We rejectPerez’s apparent argument that the Sentencing Commission has

not sufficiently justified the 16-level enhancement. We continue to apply the

appellate presumption of reasonableness to within-Guidelines sentences even if

the particular Guideline lacks an empirical basis. See United States v. Duarte,

569 F.3d 528, 529-31 (5th Cir. 2009). 

Perez has not shown that the enhancement creates unwarranted

sentencing disparities. See United States v. Willingham, 497 F.3d 541, 545 (5th

Cir. 2007). The enhancement applies equally to all persons with prior drug

trafficking convictions who have illegally reentered the United States. See

United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993). 

Additionally, we conclude that Perez has not demonstrated that his sentence is

grossly disproportionate to his offense or that it rises to the level of cruel and

unusual punishment. See id.

Neither has Perez convinced us that his sentence is unreasonable in any

other respect. “[A] sentence within a properly calculated Guideline range is

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006). Consequently, even were we to agree with Perez that the sentence he

proposed was itself reasonable, that would not be reason “to justify reversal of

the district court.” Gall, 552 U.S. at 51.

AFFIRMED.

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