* 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.

REVISED JULY 19, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41233

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE CARMELO MONDRAGON-PINEDA, also known as Carmen Javier

Beltran-Mondragon,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:11-CR-36-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Jose Carmelo Mondragon-Pineda (Mondragon) appeals the 54-month term

of imprisonment imposed on his guilty plea conviction for reentering the United

States illegally. See 8 U.S.C. § 1326. That sentence was below the advisory

guidelines sentencing range of 77 to 96 months. It was not, however, as far

below that range as Mondragon suggested it should be. 

United States Court of Appeals

Fifth Circuit

F I L E D

July 18, 2012

Lyle W. Cayce

Clerk
No. 11-41233

2

Because Mondragon does not contend that the district court committed

any procedural error, we need only review the substantive reasonableness ofthe

sentence. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). We

review sentences for reasonableness in light of the sentencing factors of 18

U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 46, 49-50 (2007).

Ordinarily, an appellate court reviewing for reasonableness “merely asks

whether the trial court abused its discretion.” Rita v. United States, 551 U.S.

338, 351 (2007). This is true whether the sentence imposed is inside or outside

the Guidelines range. Gall, 552 U.S. at 51. In the present case, however, it

might be argued that Mondragon is relegated to review for plain error. See

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Nevertheless, we

pretermit consideration of that issue, as Mondragon cannot prevail even under

the less deferential standard of review for abuse of discretion. See United States

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

The district court considered the idea of a sentence lower than the one it

finally selected. Although it agreed that a sentence below the guidelines range

was appropriate because of Mondragon’s cultural assimilation within the United

States, the district court did not believe that the § 3553(a) factors as a whole

counseled in favor of a sentence that would in effect negate the 16-level

adjustment resulting from the application of U.S.S.G. § 2L1.2(b)(1)(A), as

Mondragon requested. Although cultural assimilation may be considered as a

ground for imposing a more lenient sentence, cultural assimilation is not to be

given dispositive weight. See United States v. Lopez-Velasquez, 526 F.3d 804,

807 (5th Cir. 2008). Thus, Mondragon’s implicit argument that the cultural

assimilation factor suffices to tip the balancing ofthe sentencing factors in favor

of a lower sentence is contrary to our precedent. See id. We discern no basis for

disturbing the district court’s exercise of discretion in evaluating the totality of

the § 3553(a) factors. See Rita, 551 U.S. at 351; Brantley, 537 F.3d at 349. 

AFFIRMED.