     Case: 09-50354     Document: 00511027579          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-50354
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SERGIO MORAIDA-RODRIGUEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-374-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Sergio Moraida-Rodriguez appeals the 46-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the sentence was greater than
necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was
therefore substantively unreasonable. Specifically, he argues that the guidelines
range was too severe because United States Sentencing Guideline § 2L1.2 was
not empirically based and gave excessive weight to his prior conviction. He also

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50354    Document: 00511027579 Page: 2          Date Filed: 02/12/2010
                                 No. 09-50354

argues that the guidelines range overstated the seriousness of his nonviolent
reentry offense and failed to account for his work history and motive for
reentering the United States.      Finally, Moraida-Rodriguez argues that the
guidelines range was excessive because it resulted in an unwarranted disparity
between his sentence and sentences imposed in fast-track jurisdictions.
      This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”           United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      This court has consistently rejected Moraida-Rodriguez’s “empirical data”
argument. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009). As Moraida-Rodriguez concedes, this court has
also rejected his argument that the Guidelines produce unwarranted sentencing
disparities between defendants who can participate in a fast-track program and
defendants who cannot. See United States v. Gomez-Herrera, 523 F.3d 554, 563
(5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      The district court considered Moraida-Rodriguez’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. Moraida-Rodriguez’s assertions that § 2L1.2’s
lack of an empirical basis, the age of his last conviction, the nonviolent nature
of his offense, his work history, his motive for reentering the United States, and
the lack of a fast-track program justified a lower sentence are insufficient to
rebut the presumption of reasonableness.           See id. at 565-66.   As Moraida-
Rodriguez has not demonstrated that the district court’s imposition of a sentence
at the bottom of the guidelines range was an abuse of discretion, the district
court’s judgment is AFFIRMED.



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