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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50410
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DONALT YOVANI MARTINEZ-MARTINEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-408-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Donalt Yovani Martinez-Martinez appeals his sentence following his guilty
plea conviction for illegal reentry into the United States, a violation of 8 U.S.C.
§ 1326. Martinez-Martinez was sentenced within his advisory guidelines range
to 77 months of imprisonment and three years of supervised release. Martinez-
Martinez contends that his sentence is not entitled to a presumption of
reasonableness because U.S.S.G. § 2L1.2, the guideline provision applicable to
violations of § 1326, is not empirically based. As acknowledged by Martinez-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-50410

Martinez, this argument is foreclosed. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Martinez-Martinez also contends that his sentence should be vacated as
substantively unreasonable because it was greater than necessary to meet the
requirements of 18 U.S.C. § 3553(a). Martinez-Martinez contends that his
sentence overstated the seriousness of his illegal reentry offense, failed to reflect
his personal history and characteristics, and overstated the need to deter future
crimes and to protect the public. Martinez-Martinez’s appellate arguments fail
to establish that his sentence was unreasonable. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      AFFIRMED.




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