     Case: 09-41230     Document: 00511219273          Page: 1    Date Filed: 08/30/2010




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

                                                 FILED
                                                                           August 30, 2010
                                     No. 09-41230
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ALBERTO GARCIA-CAMACHO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:09-CR-1142-1


Before DeMOSS, STEWART and ELROD, Circuit Judges.
PER CURIAM:*
        Alberto Garcia-Camacho (Garcia) appeals following his guilty-plea
conviction of illegal reentry.           Garcia was sentenced to 41 months of
imprisonment, the bottom of the Guidelines range, and 2 years of supervised
release. Garcia argues that the district court failed to explain why it rejected his
arguments for a lower sentence, misapplied the Guidelines by requiring
extraordinary circumstances to impose a non-Guidelines sentence, and imposed
a substantively unreasonable sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41230    Document: 00511219273 Page: 2         Date Filed: 08/30/2010
                                 No. 09-41230



      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). Gall v. United States, 552 U.S. 38, 51 (2007). We must first ensure
that the district court did not commit any significant procedural error. Id. If the
sentence is procedurally sound, we then consider the substantive reasonableness
of the sentence under a deferential abuse of discretion standard. Id. If the
district court imposes a sentence within a properly calculated Guidelines range,
we apply a rebuttable presumption that the sentence is reasonable. United
States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      “While sentences within the Guidelines require little explanation, more is
required if the parties present legitimate reasons to depart from the Guidelines.”
United States v. Mondragon-Santiago, 564 F.3d 357, 362 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009) (internal quotation marks and citations omitted). Garcia’s
arguments before the district court concerning his motives for returning to the
United States and limited criminal history are relevant considerations under
§ 3553(a).    See id. at 363; see also § 3553(a)(1).        However, the record
demonstrates that the district court gave adequate reasons for rejecting Garcia’s
arguments for a lower sentence. Cf. Mondragon-Santiago, 564 F.3d at 363-64
(holding that failure to give any reasons “beyond a bare recitation of the
Guidelines calculation” was error).
      A district court may not require extraordinary circumstances to impose a
non-Guidelines sentence. United States v. King, 541 F.3d 1143, 1145 (5th Cir.
2008), cert. denied, 129 S. Ct. 947 (2009). In response to defense counsel’s
request for a downward variance, the district court remarked that Garcia’s case
“doesn’t seem to be very unusual, doesn’t [seem] to be anything extraordinary.”
Despite the district court’s ambiguous reference to the lack of extraordinary
circumstances, there is no indication in the record that the district court actually
required extraordinary circumstances to impose a non-Guidelines sentence. Cf.

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                                 No. 09-41230

United States v. Carbajal-Alvarado, 275 F. App’x 427, 427 (5th Cir. 2008)
(finding that district court’s statements made clear that it would require
extraordinary circumstances for a variation from the Guidelines range). Nor is
any there indication in the record that the district court would have imposed a
lower sentence had extraordinary circumstances been present. Instead, the
record demonstrates that the district court disagreed with Garcia regarding
whether a within-Guidelines sentence was reasonable and appropriate under
§ 3553(a). See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 388-89 (5th
Cir. 2008). Therefore, there was no error in the application of the Guidelines.
      As Garcia acknowledges, his argument that the presumption of
reasonableness should not apply because United States Sentencing Guidelines
§ 2L1.2 is not empirically-based is foreclosed by Mondragon-Santiago, 564 F.3d
at 366-67.   The within-Guidelines sentence is presumed reasonable.           See
Newson, 515 F.3d at 379. The district court considered the arguments and the
§ 3553(a) factors, and there is nothing to indicate that the district court abused
its discretion in its assessment of the relevant factors such that the sentence
should not be presumed reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
      The judgment is AFFIRMED.




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