     Case: 11-50563     Document: 00511746698         Page: 1     Date Filed: 02/03/2012




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

                                                                            FILED
                                                                         February 3, 2012
                                     No. 11-50563
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LUIS SAUCEDO-MUNOZ, also known as Jose Luis Saucedo, also known
as Jose Luis Sauceda-Munoz, also known as Jehova Miranda,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-254-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Luis Saucedo-Munoz appeals the 57-month sentence imposed
following his guilty plea conviction to one count of illegal reentry following
previous deportation. He argues that his sentence, which is at the bottom of the
applicable guidelines range, is unreasonable.
        Saucedo-Munoz makes no argument that the district court committed any
procedural error regarding his sentence. Thus, this court’s review is confined to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50563

whether the sentence is substantively unreasonable. See Gall v. United States,
552 U.S. 38, 51 (2007). Citing United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007), Saucedo-Munoz acknowledges that this court’s review is for plain
error when a defendant fails to object to the reasonableness of a sentence after
the imposition of sentence. Nevertheless, he seeks to preserve for further review
his contention that an objection is not required when the argument is preserved
via a sentencing memorandum and oral argument at a sentencing hearing.
      Although the arguments Saucedo-Munoz raises on appeal are the same
arguments he raised before the district court at sentencing and in his sentencing
memorandum, Saucedo-Munoz did not object to the reasonableness of his
sentence after it was imposed. Thus, as he acknowledges, review is arguably for
plain error. See Peltier, 505 F.3d at 391-92; but see United States v. Flanagan,
87 F.3d 121, 124 (5th Cir. 1996). However, this court need not determine
whether plain error review is appropriate because Saucedo-Munoz’s arguments
fail even under the abuse-of-discretion standard of review. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      This court has consistently rejected Saucedo-Munoz’s argument that
U.S.S.G. § 2L1.2 results in an excessive sentence since it lacks an empirical basis
and involves double-counting of a prior offense. See United States v. Duarte, 569
F.3d 528, 529-30 (5th Cir. 2009). Further, as he acknowledges, Saucedo-Munoz’s
argument that he deserved a lesser sentence based upon the disparity in fast
track early disposition programs is foreclosed by United Stats v. Gomez-Herrera,
523 F.3d 554, 563 n.4 (5th Cir. 2008). Additionally, Saucedo-Munoz’s argument
that the district court failed to consider his personal circumstances is not
supported by the record. In response to Saucedo-Munoz’s cultural assimilation
argument, the district court pointed out that Saucedo-Munoz has “spent 19 of
the last 23 years in prison.” The district court concluded that Saucedo-Munoz
did “not merit any consideration for departure or variance.” See United States
v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2009). Other than to simply

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                                  No. 11-50563

repeat the arguments made to the district court, Saucedo-Munoz has not shown
that the district court failed to give proper weight to his arguments or any
particular 18 U.S.C. § 3553(a) factor.      He has thus failed to rebut the
presumption of reasonableness that is accorded his within-guidelines sentence.
See Gomez-Herrera, 523 F.3d at 565-66.
      Accordingly, the district court’s judgment is AFFIRMED.              The
Government’s motion for summary affirmance is GRANTED IN PART as to the
issues in which relief is foreclosed by circuit precedent and DENIED IN PART
as to the issue of the reasonableness of Saucedo-Munoz’s sentence. However, no
further briefing is required, and the Government’s motion for an extension of
time to file a brief is DENIED.




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