     Case: 09-50829     Document: 00511120052          Page: 1    Date Filed: 05/24/2010




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

                                                  FILED
                                                                            May 24, 2010
                                     No. 09-50829
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

CESAR FLORES-GARCIA,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1498-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Cesar Flores-Garcia appeals the 46-month sentence imposed following his
guilty plea conviction for illegal reentry following deportation in violation of 8
U.S.C. § 1326. He contends that the sentence is substantively unreasonable
because it is greater than necessary to satisfy the sentencing goals set forth in
18 U.S.C. § 3553(a). Relying on Kimbrough v. United States, 552 U.S. 85, 108-10
(2007), he argues that the guidelines range was too severe because U.S.S.G.
§ 2L1.2 is not empirically based and double counts a defendant’s criminal record.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-50829

He also argues that the guidelines range overstated the seriousness of his
criminal history and non-violent reentry offense, which amounted to an
“international trespass.” Finally, Flores-Garcia argues that the guidelines range
failed to account for his age, his single prior conviction, and that, despite prior
removals, this was his first illegal reentry offense.
      Flores-Garcia did not object to the reasonableness of his sentence after it
was imposed; thus, our review is for plain error only. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain error, Flores-Garcia
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he makes such a showing, we may exercise our discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
      We review the “substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007).
“A discretionary sentence imposed within a properly calculated guidelines range
is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008), cert. denied, 129 S. Ct. 328 (2008). As Flores-Garcia
concedes, an appellate presumption of reasonableness can be applied “[e]ven if
the   Guidelines    are   not   empirically-grounded.”        United    States     v.
Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009), cert. denied, 130 S. Ct.
192 (2009).
      This court has consistently rejected Flores-Garcia’s “empirical data”
argument. See id. at 366-67; United States v. Duarte, 569 F.3d 528, 529-30 (5th
Cir. 2009), cert. denied, 130 S. Ct. 378 (2009). This court has also rejected the
argument that double-counting necessarily renders a sentence unreasonable.
See Duarte, 569 F.3d at 529-31.
      The district court considered Flores-Garcia’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the

                                        2
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                                No. 09-50829

applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. The district court noted that Flores-Garcia had
been removed from the United States on 10 occasions. The district court also
noted that it had sentenced Flores-Garcia to only nine months of imprisonment
on his prior alien-smuggling conviction, at which time he was warned of the
consequences of illegally reentering the United States. Moreover, the district
court indicated that it would have imposed a higher sentence if not for
Flores-Garcia’s pending supervised release revocation.          Flores-Garcia’s
assertions that § 2L1.2's lack of an empirical basis, the double-counting of his
single prior conviction, the non-violent nature of his offense, his age, and the
lack of any prior illegal reentry offenses justified a lower sentence are
insufficient to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Therefore, Flores-Garcia
has failed to show that his within-guidelines sentence is substantively
unreasonable, and he has not shown error, plain or otherwise.           See id.;
Campos-Maldonado, 531 F.3d at 339. Accordingly, the district court’s judgment
is AFFIRMED.




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