IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10248

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALFREDO CERVANTES-CARRILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-199

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.

PER CURIAM:*

Alfredo Cervantes-Carrillo pleaded guilty, without the benefit of a plea 

agreement, to illegally reentering the United States after he had been 

deported. He now challenges his 46-month prison term, contending that it is 

unreasonable on the grounds that he was improperly denied a third offenselevel reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b), the 

district court did not provide a sufficient explanation of its reasons for selecting 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 27, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-10248 Document: 00512951175 Page: 1 Date Filed: 02/27/2015
No. 14-10248

the sentence, and the sentence is substantively unreasonable. Because he 

failed to raise any of these issues or object to his sentence in the district court, 

our review is for plain error. See United States v. Garcia-Carrillo, 749 F.3d 

376, 378 (5th Cir.), cert. denied, 135 S. Ct. 676 (2014) (offense-level reduction 

under § 3E1.1(b)); United States v. Powell, 732 F.3d 361, 381 (5th Cir. 2013) 

(substantive reasonableness); (United States v. Mondragon–Santiago, 564 F.3d 

357, 361 (5th Cir. 2009) (explanation of the sentence).

Cervantes-Carrillo received a two-level reduction to his offense level 

under § 3E1.1(a) for accepting responsibility for his crime, but the Government 

declined to move for an additional one-level reduction under § 3E1.1(b) because 

he would not agree to waive his right to appeal. Effective November 1, 2013, 

more than three months before Cervantes-Carrillo was sentenced, the 

Sentencing Commission amended § 3E1.1’s commentary, instructing that the 

Government should not refuse to move for the additional reduction based on 

the defendant’s refusal to waive his appellate rights. § 3E1.1, comment. (n.6); 

see U.S. Sentencing Guidelines Manual, supp. to app. C, Amendment 775, at 

43-46 (2013); see also 28 U.S.C. § 994(p) (explaining that a guidelines

amendment takes effect unless “the effective date is revised or the amendment 

is otherwise modified or disapproved by Act of Congress”). Nonetheless, 

Cervantes-Carrillo is not entitled to be resentenced on this basis because he 

has not shown that there is a reasonable probability that he would have 

received a shorter sentence if the district court had properly applied the 

Guidelines. See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).

The district court applied an advisory guidelines range of 46 to 57 

months of imprisonment based on an offense level of 22 and a criminal history 

category of II. If Cervantes-Carrillo had received an additional one-level

reduction under § 3E1.1(b), the guidelines imprisonment range would have 

2

 Case: 14-10248 Document: 00512951175 Page: 2 Date Filed: 02/27/2015
No. 14-10248

been 41 to 51 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The 

overlap between the two ranges is substantial, and Cervantes-Carrillo’s 

sentence of 46 months of imprisonment falls within both ranges and squarely 

in the middle of the lower range; thus, any error does not affect his substantial 

rights. See Garcia-Carrillo 749 F.3d at 379. Moreover, the district court 

explained that the sentence it chose “happen[ed] to be a guidelines sentence,” 

which suggests that the court would have imposed the same sentence 

regardless of the applicable guidelines range. 

Cervantes-Carrillo next asserts that the district court improperly 

presumed that a within-guidelines sentence was reasonable and did not 

adequately explain the sentence, omitting a discussion of many of the 18 U.S.C. 

§ 3553(a) factors in favor of a “rote statement that [it] considered all relevant 

factors.” A sentence is procedurally unreasonable if the district court does not

adequately explain it. Gall v. United States, 552 U.S. 38, 51 (2007). The

district court listened to defense counsel’s argument for a lenient sentence, 

explained that it had taken into account the § 3553(a) factors, and chose the 

sentence based on Cervantes-Carrillo’s criminal history and that he had been 

deported previously. Nothing suggests that the district court presumed a 

within-guidelines sentence to be reasonable. Indeed, the court explained that 

the sentence it chose “happen[ed] to be a guidelines sentence,” which, again,

suggests that the court would have imposed the same sentence regardless of 

the applicable guidelines range. The explanation was adequate under the 

circumstances. See United States v. Diaz Sanchez, 714 F.3d 289, 293 (5th Cir. 

2013). 

The arguments that Cervantes-Carrillo’s sentence is substantively 

unreasonable fare no better in light of our presumption that his withinguidelines sentence is reasonable. See United States v. Jenkins, 712 F.3d 209, 

3

 Case: 14-10248 Document: 00512951175 Page: 3 Date Filed: 02/27/2015
No. 14-10248

214 (5th Cir. 2013). His contention that his cultural assimilation justified a 

shorter sentence is insufficient to rebut the presumption. See United States v. 

Rodriguez, 660 F.3d 231, 232, 234-35 (5th Cir. 2011) (rejecting a defendant’s 

argument that his sentence was substantively unreasonable because the 

district court failed to accord proper weight to his cultural assimilation). 

Though a defendant’s cultural assimilation can be a mitigating factor at 

sentencing and even support a downward departure, a sentencing court need 

not give this factor dispositive weight. Id.; see U.S.S.G. § 2L1.2, comment. 

(n.9). As for Cervantes-Carrillo’s argument that he should have received a 

more lenient sentence because he returned to the United States to care for his 

elderly mother, the district court was not required to impose a lighter sentence 

on this basis. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th 

Cir. 2008) (refusing to disturb the presumption of reasonableness where the 

defendant was motivated to illegally reenter the United States in part to see 

his ailing father). With regard to his contention that illegal reentry amounts

merely to an unauthorized border crossing and is a victimless crime, this court 

has implicitly rejected the theory that this characterization of the offense 

renders a within-guidelines sentence unreasonable. See United States v. 

Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). Finally, as to CervantesCarrillo’s assertion that the 16-level enhancement to his offense level for being 

deported after a conviction for a drug-related offense rendered the sentence 

substantively unreasonable, it was within the district court’s discretion to 

determine that the illegal reentry guideline generated a guidelines range that 

was too high, see Gomez-Herrera, 523 F.3d at 557 n.1, but it was not required 

to do so, see Mondragon-Santiago, 564 F.3d at 366-67. 

Although Cervantes-Carrillo disagrees with the weight that the district 

court gave to some of the sentencing factors, we will not reweigh them. See 

4

 Case: 14-10248 Document: 00512951175 Page: 4 Date Filed: 02/27/2015
No. 14-10248

United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). He 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 when it balanced the relevant 

factors. See Jenkins, 712 F.3d at 214. He thus has not rebutted the 

presumption that his within-guidelines sentence is reasonable, much less has 

he shown that the district court committed plain error. See id.

The district court’s judgment is AFFIRMED.

5

 Case: 14-10248 Document: 00512951175 Page: 5 Date Filed: 02/27/2015