     Case: 10-50382 Document: 00511361661 Page: 1 Date Filed: 01/26/2011




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

                                                  FILED
                                                                          January 26, 2011
                                     No. 10-50382
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WALTER LEONARDO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1079-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
         Walter Leonardo appeals the within-guidelines sentence imposed upon his
guilty plea conviction for illegal reentry. See 8 U.S.C. § 1326. Leonardo argues
that his sentence is unreasonable in that the illegal reentry guideline, U.S.S.G.
§ 2L1.2, produced a guideline range that was greater than necessary to reflect
the seriousness of his offense or to provide just punishment. See 18 U.S.C.
§ 3553(a)(2)(A). He argues that this is so because § 2L1.2 lacks an empirical
basis.       Leonardo contends that § 2L1.2 gave too much weight to his prior

         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50382 Document: 00511361661 Page: 2 Date Filed: 01/26/2011

                                 No. 10-50382

conviction for aggravated assault with a deadly weapon (1) because the
conviction was accounted for in both his offense level and his criminal history
score, and (2) because the conviction is too old. He contends that the advisory
guideline range did not account for his motive for reentering this country, i.e.,
to see his son, or his terrible childhood and his serious mental health problems.
      At sentencing, the district court found that a fair and reasonable sentence
could be achieved with a sentence within the advisory guideline range. The
district court noted the seriousness of the aggravated assault with a deadly
weapon offense after the Government pointed out that a police officer was hit
with a motor vehicle. The court noted that Leonardo committed that offense
after his convictions for burglary of a vehicle with intent to commit theft and
DWI, neither of which was counted in his criminal history score. The district
court heard counsel’s arguments regarding Leonardo’s difficult childhood and his
need for mental health treatment, stating that the availability of treatment in
the Bureau of Prisons and Leonardo’s obvious need for such treatment were part
of the reasons for the length of the sentence.
      The district court gave sufficient reasons for imposing a within-guidelines
sentence. See Rita v. United States, 551 U.S. 338, 356 (2007). Leonardo has not
rebutted the presumption of reasonableness applicable to his within-guidelines
sentence. See id. at 347. Therefore, he has not shown that the district court
abused its discretion in imposing a sentence within the applicable guidelines
range. See Gall v. United States, 552 U.S. 38, 46, 51 (2007).
      Leonardo concedes that circuit precedent forecloses his arguments (1) that
the lack of an empirical basis for § 2L1.2 means that the appellate presumption
of reasonableness applicable to within-guidelines sentences should not be
applied, and (2) that the district court erred by making his need for mental
health treatment the gauge of the appropriate length of imprisonment. See




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                                No. 10-50382

United States v. Campos-Maldonado, 531 F.3d 337 (5th Cir. 2008); United States
v. Giddings, 37 F.3d 1091, 1096 (5th Cir. 1994).
      AFFIRMED.




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