     Case: 10-50211 Document: 00511316293 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 10-50211
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN MANUEL LOPEZ-CRUZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-968-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Juan Manuel Lopez-Cruz (Lopez) pleaded guilty without a written plea
agreement to illegal reentry after deportation and was sentenced within the
advisory guidelines range to 46 months of imprisonment and three years of
supervised release.
       Lopez argues that the district court imposed a sentence greater than
necessary to meet the goals of sentencing in 18 U.S.C. § 3553(a) and that the
sentence is, therefore, substantively unreasonable. He contends that (1) his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50211 Document: 00511316293 Page: 2 Date Filed: 12/08/2010

                                   No. 10-50211

criminal history was overstated due to the double-counting of his prior sexual
assault conviction in both his criminal history and his offense level calculations;
(2) his short incarceration for 120 days for the sexual assault conviction
indicated that his 46-month sentence was greater than necessary to deter future
crime or protect the public; and (3) nothing in the record demonstrated that his
sentence was necessary to provide him with educational training, medical care,
or other correctional treatment.
      Lopez argues that although he did not object to the reasonableness of his
sentence in the district court, no such objection was necessary to preserve the
issue for review.      He also argues that an appellate presumption of
reasonableness should not apply to his sentence because U.S.S.G. § 2L1.2 is not
supported by empirical data. Lopez correctly acknowledges, however, that these
arguments are foreclosed by this court’s precedent, and he asserts that he is
raising them only to preserve them for future review. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      The record demonstrates that the district court considered the § 3553(a)
factors and Lopez’s arguments at sentencing before determining that Lopez’s
within-guidelines sentence was fair and reasonable, and thus Lopez has failed
to rebut the presumption of reasonableness that this court applies to his
within-guidelines sentence. See United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). As a result, Lopez has not shown that the district court
committed plain error by imposing an unreasonable sentence.           See Peltier,
505 F.3d at 391-92.
      AFFIRMED.




                                        2
