     Case: 10-51213     Document: 00511697032         Page: 1     Date Filed: 12/15/2011




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

                                                                            FILED
                                                                        December 15, 2011
                                     No. 10-51213
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL ANGEL ISLAS-MACIAS, also known as Eduardo Mendoza-Macias,

                                                  Defendant-Appellant

Cons. w/ No. 10-51227

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL ANGEL ISLAS-MACIAS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:09-CR-212-1
                             USDC No. 4:10-CR-289-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51213   Document: 00511697032      Page: 2   Date Filed: 12/15/2011

                                  No. 10-51213
                                c/w No. 10-51227

      Miguel Angel Islas-Macias (Islas) appeals his sentence following his guilty
plea conviction for being found unlawfully present in the United States. He also
appeals his revocation sentence imposed after Islas violated the terms of
probation arising from a prior improper entry conviction.
      Islas contends that, because he argued in the district court that he should
receive a lower sentence, plain error review is improper, even though he failed
to object on unreasonableness grounds. As Islas concedes, this court has held
that an objection to the substantive unreasonableness of a sentence is required
to preserve error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007);
see also Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)
(holding that a panel of this court cannot overturn a prior panel’s decision).
      Islas further challenges the application of the plainly unreasonable
standard of review to his revocation sentence although he likewise concedes that
this court has held otherwise. See United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011), petition for cert. filed, (U.S. May 27, 2011) (No. 10-10784). Because
Islas did not object to his revocation sentence, this contention is nevertheless
irrelevant, and review of his revocation sentence is also limited to plain error.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
      In asserting unreasonableness, Islas first argues that the illegal reentry
guideline, U.S.S.G. § 2L1.2, is not empirically supported and a sentence under
that Guideline is therefore unreasonable.      But “[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.
2008), and this court has held that examination of the empirical basis for
sentencing guidelines is not necessary before applying the presumption of
reasonableness. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009). This court has also rejected Islas’s argument

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   Case: 10-51213   Document: 00511697032      Page: 3   Date Filed: 12/15/2011

                                  No. 10-51213
                                c/w No. 10-51227

that the non-violent nature of illegal reentry warrants reversal of the district
court’s ruling. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
      As for Islas’s revocation sentence, his sentencing range was 8-14 months,
under the policy statements. See § 7B1.4(a), (b)(3)(A). The statutory maximum
sentence that could be imposed upon revocation of Islas’s parole was a one-year
term of imprisonment because the offense resulting in his term of probation was
a Class E felony. 18 U.S.C. § 3583(e)(3). Islas’s violation of his probation was
a Grade B violation, see § 7B1.1(a)(2), and at the time of his original sentencing
to probation, Islas’s criminal history category was III. The 11-month sentence
imposed was therefore within the policy statement guidelines range and below
the statutory maximum penalty.
      Islas contends that all of the goals of sentencing could have been met by
a far lower combined sentence. However, “[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.” United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The record demonstrates that the
district court considered the 18 U.S.C. § 3553(a) factors and Islas’s arguments
at sentencing before determining that a within-guidelines sentence was fair and
reasonable. The district court pointed out that Islas had been voluntarily
returned seven times to Mexico and indicated that further deterrence was
necessary under those circumstances. The district court’s comments indicate
that it considered the § 3553(a) factors as well as the Chapter 7 policy
statements. Islas has not shown that the revocation sentence imposed was
plainly unreasonable.
      Accordingly, Islas has not offered sufficient reasons to disturb the
judgment of the district court, and the sentences are AFFIRMED.



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