     Case: 13-50227      Document: 00512492853         Page: 1    Date Filed: 01/08/2014




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

                                                                                 FILED
                                    No. 13-50227                           January 8, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

MANUEL ANTONIO GALDAMEZ-ESCOBAR,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-931-1


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Manuel Antonio Galdamez-Escobar appeals his 41-month sentence,
imposed following his guilty-plea conviction for being found unlawfully present
in the United States following deportation. He contends the sentence was
unreasonable because it was greater than necessary to meet the sentencing
goals of 18 U.S.C. § 3553(a).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50227     Document: 00512492853      Page: 2    Date Filed: 01/08/2014


                                  No. 13-50227

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).          Galdamez does not claim
procedural error. Instead, he maintains only that the challenged sentence was
substantively unreasonable.
      “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). Galdamez contends, however,
the presumption of reasonableness does not apply to his within-Guideline
sentence because the illegal reentry Guideline, § 2L1.2, is not supported by
empirical data. Galdamez concedes this argument is foreclosed by United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). He raises the issue only
to preserve it for possible further review.
      Asserting his sentence is greater than necessary to meet the sentencing
goals outlined in 18 U.S.C. § 3553(a), Galdamez contends the district court
failed to consider that the applicable Guideline does not take into account his
benign motive for returning to the United States and the overstatement of his
criminal history.     Galdamez’ contentions are insufficient to rebut the
presumption of reasonableness. E.g., United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.



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