     Case: 12-50789       Document: 00512253264         Page: 1     Date Filed: 05/24/2013




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

                                                                            FILED
                                                                           May 24, 2013
                                     No. 12-50789
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE MARCELINO MARTINEZ-GARZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-53-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Jose Marcelino Martinez-Garza appeals the 60-month sentence imposed
following his guilty plea conviction for illegal reentry into the United States after
deportation.     He argues that the sentence, which was above the advisory
guidelines range of 46 to 57 months of imprisonment, was substantively
unreasonable.      In particular, he argues that the guidelines range greatly
overstated the seriousness of his illegal reentry offense because U.S.S.G. § 2L1.2
lacks an empirical basis and because his prior crime of violence conviction for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50789     Document: 00512253264      Page: 2   Date Filed: 05/24/2013

                                  No. 12-50789

voluntary manslaughter was used to increase both his offense level and his
criminal history, resulting in double counting. He also asserts that the sentence
was substantively unreasonable because the district court did not consider
various mitigating factors and gave undue consideration to the allegation of
sodomy of the manslaughter victim, which was not a factfinding made by a court
or a jury.
      Because Martinez-Garza did not object to the substantive reasonableness
of the sentence, we review for plain error. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010); see also Puckett v. United States, 556 U.S. 129, 135
(2009).
      The sentence imposed by the district court was not substantively
unreasonable. We have rejected similar challenges to § 2L1.2. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Flores-Rosales,
260 F. App’x 729, 730 (5th Cir. 2007). After considering Martinez-Garza’s
allocution and arguments, the properly calculated advisory guidelines range, and
the 18 U.S.C. § 3553(a) factors, the district court determined that a 60-month
sentence was warranted based on his prior voluntary manslaughter conviction,
the danger to the public posed by his criminal history, his lack of respect for the
law reflected in his quick return to the United States after removal, and the
need to reflect the seriousness of the offense, to promote respect for the law, to
provide just punishment, and to deter future criminal conduct. He is essentially
asking this court to reweigh the sentencing factors, which we will not do. See
United States v. McElwee, 646 F.3d 328, 343-44 (5th Cir. 2011).
      The sentence did not exceed the statutory maximum sentence of 20 years
of imprisonment, see 8 U.S.C. § 1326(a) & (b)(2), and we have affirmed similar
upward variances that do not exceed the statutory maximum sentence as
substantively reasonable. See, e.g., United States v. Key, 599 F.3d 469, 475-76
(5th Cir. 2010); United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
Accordingly, the judgment of the district court is AFFIRMED.

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