     Case: 09-50985     Document: 00511225969          Page: 1    Date Filed: 09/07/2010




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

                                                 FILED
                                                                         September 7, 2010
                                     No. 09-50985
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ISABEL TENA-MUNOZ,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-1653-1


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
        Isabel Tena-Munoz appeals his within-guidelines sentence of 70 months’
imprisonment imposed following his guilty-plea conviction for illegal reentry.
See 8 U.S.C. § 1326. He contends his sentence, which incorporated a 16-level
enhancement under advisory Sentencing Guideline § 2L1.2(b)(1)(A)(iii) based on
his previous deportation after a felony firearms offense, is substantively
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a). He also contends the ordinary presumption of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50985    Document: 00511225969 Page: 2         Date Filed: 09/07/2010
                                 No. 09-50985

reasonableness for within-guidelines sentences is inapplicable because Guideline
§ 2L1.2 is not empirically based.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 50-51 (2007).       In that respect, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Tena does not claim
procedural error. When, as here, the district court imposes a sentence within a
properly-calculated guidelines range, we accord great deference to the sentence
and apply a rebuttable presumption of reasonableness. Gall, 552 U.S. at 51-52;
United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      In district court, as he concedes, Tena failed to object specifically to the
reasonableness of his sentence; therefore, the standard of review could be plain-
error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Our court
has not yet determined whether a defendant’s failure to object at sentencing to
the reasonableness of his sentence triggers such review.             Id. at 391.
Nevertheless, we need not decide that issue because Tena is not entitled to relief
even under the more deferential abuse-of-discretion standard. United States v.
Rodriguez-Orozco, 332 F. App’x 968, 969 (5th Cir.), cert. denied, 130 S. Ct. 477
(2009).
      Tena failed to rebut the presumption of reasonableness that applies to his
within-guidelines sentence. The district court heard Tena’s contentions and
rejected the assertion that his criminal history was overstated, noting that
Tena’s criminal history reflected “a solid involvement in drug trafficking”.
Moreover, the district court considered Tena’s prior imprisonment of 60 months
and stated it was an inadequate deterrent.          The district court made an

                                         2
   Case: 09-50985    Document: 00511225969 Page: 3         Date Filed: 09/07/2010
                                 No. 09-50985

individualized sentencing decision in the light of the sentencing factors set forth
in § 3553(a). See Gall, 552 U.S. at 50. Accordingly, there is no reason to disturb
the district court’s discretionary decision to impose a within-guidelines sentence.
      Tena further maintains that the presumption of reasonableness is
inapplicable because advisory Guideline § 2L1.2 (increasing offense level for
unlawfully entering or remaining in the United States following prior
convictions) is not empirically based. Conceding that our court’s precedent
forecloses this contention, he raises it in order to preserve it for possible further
review. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied,
130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-
67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      AFFIRMED.




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