     Case: 10-50241 Document: 00511366433 Page: 1 Date Filed: 01/31/2011




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

                                                 FILED
                                                                          January 31, 2011
                                     No. 10-50241
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KELVIN DELEON-SANTOS, also known as Kelvin De Leon-Santos,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-3230-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges
PER CURIAM:1
       Kelvin Deleon-Santos appeals from the sentence imposed following his
guilty plea conviction for illegal reentry. The district court sentenced him to
forty-one months of imprisonment and three years of supervised release. He
raises four challenges to his sentence on appeal. We conclude that none has
merit and affirm his sentence.
       First, Deleon argues that the district court committed a significant
procedural error by treating the Sentencing Guidelines as mandatory.

       1
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50241

Examination of the record shows that Deleon’s argument lacks a factual basis.
The district court explained to Deleon at the sentencing hearing that it had “the
discretion to sentence outside of the Guidelines.”
       Next, Deleon criticizes the district court for failing to explicitly reference
the factors enumerated in 18 U.S.C. § 3553(a) during the sentencing hearing.
But the district court stated that it intended to impose a sentence that would
“accomplish all of the purposes of the sentencing statute.” We have rejected the
notion that the Guidelines require the district court to “engage in robotic
incantations that each statutory factor has been considered.” United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citation and internal quotation marks
omitted).    Where, as here, the district court imposes a within-Guidelines
sentence, we presume that it considered all of the § 3553(a) factors. See Rita v.
United States, 551 U.S. 338, 350–51. Deleon has not rebutted that presumption.
       Third, Deleon argues that the district court ran afoul of United States v.
Booker, 542 U.S. 296 (2004), by finding that Deleon had a prior conviction for a
crime of violence and imposing a 16-level sentence enhancement based on that
prior conviction pursuant to § 2L1.2(b)(1)(a)(ii) of the Guidelines. In actuality,
the district court concluded that Deleon had a prior felony drug-trafficking
conviction for which the sentence imposed exceeded 13 months and imposed the
sentence enhancement pursuant to § 2L1.2(b)(1)(a)(I). Its decision to do so was
not error. A district court may rely on the fact of a prior conviction even where
that fact has not been found by a jury, Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), and the characterization of that prior conviction for Guidelines purposes
is a question of law not subject to the limitations of Booker and Apprendi, see
United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005). There is no Sixth
Amendment problem here.2


       2
         Even if the proper characterization of a conviction were a question of fact, a district
court is free to rely on a fact not found by the jury so long as that fact does not increase the
sentence beyond the statutory maximum, United States v. Dison, 573 F.3d 204, 209 (5th Cir.

                                               2
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                                       No. 10-50241

       Finally, Deleon argues in his reply brief that the district court should have
refused to apply the § 2L1.2(b)(1)(A) sentence enhancement because it is not
based upon empirical data. This court generally does not consider issues raised
for the first time in a reply brief. United States v. Rodriguez, 602 F.3d 346, 360
(5th Cir. 2010). Even if we were to consider Deleon’s argument, it would fail.
We have previously rejected the argument that § 2L1.2’s lack of empirical
foundation renders its application unreasonable. See, e.g., United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
       The judgment of the district court is AFFIRMED.




2009), and the fact of Deleon’s prior conviction did not increase his sentence past the 20-year
statutory maximum, see 8 U.S.C. § 1326(b)(2).

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