     Case: 09-51171     Document: 00511216208          Page: 1    Date Filed: 08/26/2010




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

                                                 FILED
                                                                           August 26, 2010
                                     No. 09-51171
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

CARLOS RENE GOMEZ-MURILLO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-744-1


Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Carlos Rene Gomez-Murillo (Gomez) pleaded guilty to illegal reentry after
deportation and now appeals his 30-month within-guidelines range sentence of
imprisonment.       Gomez argues that the sentence imposed is substantively
unreasonable for several reasons.
        Because Gomez did not object to the reasonableness of his sentence, we
review for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). We have rejected Gomez’s argument that by effectively “double-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51171    Document: 00511216208 Page: 2       Date Filed: 08/26/2010
                                 No. 09-51171

counting” the criminal history of illegal immigrants the applicable guidelines
range overstates the risk of recidivism and the seriousness of the offense. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009). Gomez concedes that his contention that his within-guidelines range
sentence should not be afforded a presumption of reasonableness because United
States Sentencing Guideline § 2L1.2 is not supported by an empirical basis is
foreclosed. United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir.), cert. denied, 130 S.Ct. 192 (2009).
      Gomez also asserts that his sentence is substantively unreasonable
because it does not properly account for his mitigating history and
characteristics, including his motives for returning to the country. However, the
district court concluded that the sentence was appropriate in light of all of the
18 U.S.C. § 3553(a) factors, and this court must give deference to that
conclusion. See Gall v. United States, 552 U.S. 38, 51 (2007). Gomez fails to
rebut the presumption of reasonableness afforded his within-guidelines
sentence, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and has
not demonstrated plain error. See Peltier, 505 F.3d at 391-92. Accordingly, the
judgment of the district court is AFFIRMED.




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