     Case: 11-50657     Document: 00511890327         Page: 1     Date Filed: 06/18/2012




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

                                                                            FILED
                                                                           June 18, 2012
                                     No. 11-50657
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CARLOS MARTINEZ-FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-42-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Juan Carlos Martinez-Flores (Martinez) appeals the 52-month sentence
imposed following his guilty plea conviction for illegal reentry into the United
States after deportation, in violation of 13 U.S.C. § 1326. Martinez argues that
his within-guidelines sentence is substantively unreasonable because it is
greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C.
§ 3553(a). He contends that the applicable guidelines sentencing range greatly
overstates the seriousness of his illegal reentry offense because the illegal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50657     Document: 00511890327     Page: 2    Date Filed: 06/18/2012

                                    No. 11-50657

reentry guideline under which he was sentenced, U.S.S.G. § 2L1.2, lacks an
empirical basis and because his prior conviction for a crime of violence increased
both his offense level and his criminal history score. He further argues that his
illegal reentry offense was mitigated by his personal characteristics and history
and that those factors were not adequately taken into account by the Sentencing
Guidelines or the district court.
      Martinez did not object to his sentence as substantively unreasonable in
the district court.    Rather, his sole objection was whether the 16-level
enhancement should be applied based on his prior conviction for aggravated
kidnaping.    Accordingly, review is for plain error.       See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); see also United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (requiring objection to substantive
unreasonableness of sentence to preserve error). Although Martinez argues that
no objection to the reasonableness of his sentence was required, he raises the
argument solely to preserve it for further review in light of the current split
among the courts of appeals.
      Martinez also argues that a presumption of reasonableness should not be
applied to his within-guidelines sentence because § 2L1.2 is not empirically
based. He concedes that this argument is foreclosed, see United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009), but he raises the issue to preserve it for
further review.
      We previously have rejected the argument, which Martinez now makes on
appeal, that § 2L1.2's purported empirical flaws and double-counting of previous
convictions necessarily render a sentence unreasonable. See id. We reasoned
that courts need not undertake “a piece-by-piece analysis of the empirical
grounding behind each part of the sentencing guidelines.” Id. at 530. Although
a district court has the discretion to consider such a policy-based argument in
making its determination, it is not required to do so. See id. at 530-31.



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                                  No. 11-50657

      In addition, the record reflects that the district court heard the same
mitigation arguments Martinez raises in his brief in this court and implicitly
considered those arguments in determining Martinez’s sentence. The district
court expressly noted that it took into account “the allocution of the parties,”
Martinez’s history and characteristics, the need for the sentence to deter
Martinez from committing further crimes, and the need for the sentence to
protect the public.
      Martinez’s “disagreement with the propriety of the sentence imposed does
not suffice to rebut the presumption of reasonableness that attaches to [his]
within-guidelines sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.
2010). Martinez has failed to show that his sentence either failed to account for
a factor that should have received significant weight or represented a clear error
of judgment in balancing the sentencing factors. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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