     Case: 09-10831     Document: 00511205524          Page: 1    Date Filed: 08/17/2010




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

                                                 FILED
                                                                           August 17, 2010
                                     No. 09-10831
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ADEYINKA IYABODE DJENEBO PITAN, also known as Yetunde Adeyimka
Pitan Otubanjo,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-31-1


Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
        Adeyinka Iyabode Djenebo Pitan appeals the 41-month sentence she
received following her guilty plea conviction for illegal reentry into the United
States following deportation. She asserts that her sentence, despite being within
the applicable guidelines range, was substantively unreasonable. After United
States v. Booker, 543 U.S. 220 (2005), this court reviews sentences for
reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). If the district


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10831   Document: 00511205524 Page: 2        Date Filed: 08/17/2010
                                No. 09-10831

court’s decision is procedurally sound, we will “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51.
      In her first ground for relief, Pitan asserts that her sentence is
substantively unreasonable because it was greater than needed to accomplish
the goals of 18 U.S.C. § 3553(a). She notes the defense arguments at sentencing
focused on the remoteness of the drug offense resulting in the 16-level
enhancement, her benign reasons for returning to the United States, and the
factors considered by other courts in imposing downward variances in similar
cases. Pitan’s disagreement with the within-guidelines sentence imposed does
not suffice to rebut the presumption of reasonableness. See id.; United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
      Additionally, Pitan contends that the applicable guidelines range of 41-51
months in prison was too severe because U.S.S.G. § 2L1.2 was not empirically
based. This court has consistently rejected Pitan’s “empirical data” argument.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.). cert. denied, 130
S. Ct. 378 (2009). Additionally, Pitan has not established that this court may not
apply a presumption of reasonableness to a sentence imposed within the
applicable guidelines range. See United States v. Mondragon-Santiago, 564 F.3d
357, 367 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).     Consequently, the
judgment of the district court is AFFIRMED.




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