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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50238
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALBERTO CRUZ TOSCANO-MARTINEZ, also known as Angel Martinez-
Garcia,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-3133-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Alberto Cruz Toscano-Martinez (Toscano) appeals his 60-month guidelines
sentence for illegal reentry into the United States following removal. Relying on
Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), he contends that the
appellate presumption of reasonableness accorded to sentences within the
properly calculated guidelines range should not apply because U.S.S.G. § 2L1.2
was not derived from empirical data and national experience. The presumption


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50238

of reasonableness applies. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Toscano argues that his sentence was unreasonable because it was greater
than necessary to achieve the sentencing goals in 18 U.S.C. § 3553(a), including
the need for the sentence to deter future criminal conduct and to protect the
public. He contends that a shorter sentence was appropriate because § 2L1.2
gives undue weight to a defendant’s prior record, his past drug offenses were
linked to his drug and alcohol addiction, the instant offense was not violent, and
he reentered the United States to earn money for his family. In determining
Toscano’s sentence, the district court considered the advisory Guidelines, the
presentence report, and appropriate factors under § 3553(a).           The court
considered Toscano’s sentencing arguments and determined that a guidelines
sentence was necessary to deter future criminal conduct and to protect the
community. Toscano fails to rebut the presumption that his guidelines sentence
was reasonable.
      The judgment of the district court is AFFIRMED.




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