IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11125

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL GARCIA-CABRERA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-158-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Miguel Garcia-Cabrera appeals the 51-month sentence imposed following

his guilty-plea conviction for illegal reentry following previous deportation. He

asserts that his within-guidelines sentence is unreasonable because it is greater

than necessary to meet the goals of 18 U.S.C. § 3553(a). Garcia-Cabrera argues

that the Guidelines that govern illegal reentry offenses produce unreasonable

sentences because they result in double-counting of criminal history and do not

properly account for the non-violent nature of the offense. He also contends that

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2012

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. 10-11125

he deserved a lesser sentence in light of the disparity in fast-track programs in

certain districts. Garcia-Cabrera further asserts that his sentence did not reflect

his personal history and characteristics.

The Government maintains that the instant appeal should be dismissed

because the underlying notice of appeal was untimely. The record supports the

Government’s contention. The instant notice of appeal, which Garcia-Cabrera

filed after his initial appeal was dismissed for want of prosecution, was filed

after the expiration of the time for filing a timely notice of appeal and beyond the

time during which the district court could have extended the time for filing a

notice of appeal. See FED. R. APP.P. 4(b)(1)(A)(i), (b)(4). Garcia-Cabrera did not

seek reinstatement of the district court’s judgment and set forth no justification

for his second attempt to appeal the district court’s judgment. He also did not

seek leave to file an out-of-time appeal pursuant to 28 U.S.C. § 2255. Thus, we

dismiss Garcia-Cabrera’s appeal as untimely filed. See Burnley v. City of San

Antonio, 470 F.3d 189, 192 n.1 (5th Cir. 2006). 

Even if we pretermitted the issue of whether Garcia-Cabrera filed a timely

notice of appeal and addressed the merits of the case, his appeal would fail. See

United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007). His arguments

consistently have been rejected by this court. See United States v. Duarte, 569

F.3d 528, 529-31 & n.2 (5th Cir. 2009) (rejecting argument that a sentence is

unreasonable because U.S.S.G. § 2L1.2 results in double-counting of a prior

criminal conviction); United States v. Gomez-Herrera, 523 F.3d 554, 563 n. 4(5th

Cir. 2008) (dismissing argument that guidelines range was excessive because it

caused unwarranted disparities based on the availability of fast-track program);

United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (holding that

argument that illegal reentry is not a violent crime does not justify disturbing

a presumptively reasonable sentence). The record also supports that the district

court’s sentencing decision was based upon an individualized assessment of the

facts, in light of the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 49-

2

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51 (2007). Accordingly, Garcia-Cabrera has not rebutted the presumption of

reasonableness that attaches to his within-guidelines sentence. See United

States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). 

The appeal is DISMISSED as untimely.

3

Case: 10-11125 Document: 00511918784 Page: 3 Date Filed: 07/12/2012