     Case: 09-40676     Document: 00511030697          Page: 1    Date Filed: 02/19/2010




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

                                                  FILED
                                                                          February 19, 2010
                                     No. 09-40676
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FILIBERTO HERNANDEZ-NAVARRO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-70-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Filiberto Hernandez-Navarro was convicted of attempted unlawful entry
into the United States following deportation and after having been convicted of
a felony, and was sentenced to a 54-month term of imprisonment. Hernandez-
Navarro challenges his within-guidelines sentence, contending that the district
court erred in overruling his objection to U.S.S.G. § 2L1.2, the illegal-reentry
Guideline, as lacking an empirical basis. He argues, for purposes of preserving



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-40676

the issue for possible further review, that the presumption of reasonableness
should not apply to sentences calculated under the illegal-reentry Guideline.
         Although we generally review an ultimate sentence for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007).
With respect to an issue raised in district court, the district court’s 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).
         We have consistently rejected Hernandez-Navarro’s “empirical data”
arguments, concluding that Kimbrough v. United States, 552 U.S. 85 (2007), does
not require district or appellate courts to independently analyze the empirical
grounding behind each individual Guideline and that Kimbrough does not
question the presumption of reasonableness. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); see also United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130
S. Ct. 192 (2009).
         Hernandez-Navarro argues that the district court committed significant
procedural error in failing to provide an adequate explanation for the sentence
and that the sentence is substantively unreasonable. He concedes that he did
not raise these arguments in the district court, but he seeks to preserve for
possible further review his contention that review should not be limited to plain
error.
         Because Hernandez-Navarro did not challenge in the district court the
adequacy of the district court’s explanation of sentence, we review for plain
error. Mondragon-Santiago, 564 F.3d at 361. To show plain error, Hernandez-
Navarro must show an error that is clear or obvious and that affects his
substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). This court will correct such an error only if

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                                 No. 09-40676

it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Even if Hernandez-Navarrro has identified clear or obvious error with
respect to the adequacy of the district court’s explanation of sentence, he has not
shown that the error affected his substantial rights. See Mondragon-Santiago,
564 F.3d at 364-65. He argues that his substantial rights were affected because
the district court’s “failure to address his nonfrivolous mitigation arguments
deprived this Court of the ability to conduct a thorough analysis of the
substantive reasonableness of his sentence.” As he acknowledges, however, this
argument is foreclosed by Mondragon-Santiago, 564 F.3d at 365, although he
seeks to preserve the argument for possible further review. Hernandez-Navarro
argues that at least a reasonable probability exists that if the district court had
been required to articulate its reasons and to address his mitigation arguments,
the district court would have found merit in those arguments and imposed a
lower sentence because each argument related, “in a mitigating way,” to
considerations in 18 U.S.C. § 3553(a).      Hernandez-Navarro has not shown,
however, that the error “actually did make a difference.” Mondragon-Santiago,
564 F.3d at 364-65. Because Hernandez-Navarro has not shown that the error,
if any, affected his substantial rights, he has not shown plain error. See id.;
Baker, 538 F.3d at 332.
      Hernandez-Navarro       argues   that   the   sentence    is   substantively
unreasonable and greater than necessary to meet the goals of § 3553(a). We
need not determine whether plain-error review is appropriate because
Hernandez-Navarro is not entitled to relief even assuming that he preserved the
substantive reasonableness issue for review. See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Hernandez-Navarro
contends that even if a presumption of reasonableness applies, that presumption
is rebutted in this case because (1) the prior offense which increased his base
offense by 16 levels was committed well over 14 years prior to the instant

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                                No. 09-40676

offense, (2) the 54-month sentence was almost equal to that imposed for the prior
offense, and (3) the sentence did not take into account his mental illness or his
motivation for entering. A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence.           Cf. United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008); Rodriguez, 523 F.3d at 526. Hernandez-Navarro has not shown that his
sentence was substantively unreasonable, see Gall, 552 U.S. at 51, nor has he
rebutted   the   presumption    of   reasonableness    that   attaches    to   his
within-guidelines sentence. See Gomez-Herrera, 523 F.3d at 565-66.
      AFFIRMED.




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