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

                                                FILED
                                                                October 20, 2009
                                No. 08-51290
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JACINTO ANALCO-GATICA,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1789-ALL


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Jacinto Analco-Gatica (Analco) was convicted of illegal reentry after
deportation and was sentenced to 37 months of imprisonment and three years
of supervised release.
      Analco argues on appeal that his sentence, which was within the advisory
guidelines sentencing range, was greater than necessary to meet the sentencing
goals established in 18 U.S.C. § 3553(a)(2). He contends that his sentence was



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-51290

therefore substantively unreasonable because the illegal reentry Guideline (1) is
not based on empirical data, (2) does not take into account the unusual
circumstances surrounding his offense, (3) overstates the seriousness of his
offense, and (4) does not properly account for his personal history.
      Because Analco did not object to the reasonableness of his sentence in the
district court and because he received the within-guidelines sentence that he had
requested, the reasonableness of his sentence should be reviewed for plain error.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied,
128 S. Ct. 2959 (2008).
      The record demonstrates that the district court considered the § 3553(a)
factors to determine that Analco’s sentence was sufficient but not greater than
necessary to achieve the goals of § 3553(a)(2). Furthermore, as to Analco’s
assertion that the illegal reentry Guidelines are not based on empirical data,
“[i]n appropriate cases, district courts certainly may disagree with the
Guidelines for policy reasons and may adjust a sentence accordingly. But if they
do not, [this court] will not second-guess their decisions under a more lenient
standard simply because the particular Guideline is not empirically-based.”
United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009), cert.
denied, 2009 WL 1849974 (Oct. 5, 2009) (No. 08-11099). Analco has failed to
rebut the presumption of reasonableness that we apply to a within-guidelines
sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008). As a result, he has not shown that the
district court committed plain error by imposing an unreasonable sentence. See
Peltier, 505 F.3d at 391-92.
      AFFIRMED.




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