     Case: 11-10144     Document: 00511639598         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-10144
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EFREN ZUNIGA-MENDOZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:10-CR-52-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Efren Zuniga-Mendoza (Zuniga) appeals from the 87-month within-
guidelines sentence imposed by the district court following his conviction of
illegal reentry.
        In reviewing the sentence imposed for reasonableness, this court must first
determine whether the district court committed any procedural errors, including,
inter alia, “failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007). If the district court’s decision is procedurally

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10144    Document: 00511639598      Page: 2    Date Filed: 10/20/2011

                                  No. 11-10144

sound, this court will “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id. A sentence that falls
within the applicable guidelines range “is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding the application of the presumption of
reasonableness to sentences within a properly calculated guidelines range).
      Because Zuniga did not sufficiently raise below his argument that the
district court failed to explain adequately the sentence imposed, we review for
the issue for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).   Zuniga properly concedes that under plain error review, his
procedural reasonableness argument is foreclosed.           See United States v.
Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).
      Further, we reject Zuniga’s argument that Pepper v. United States, 131
S. Ct. 1229, 1246-49 (2011), contravenes this court’s holding in Mondragon-
Santiago that a sentence that falls within a guidelines range calculated
pursuant to U.S.S.G. § 2L1.2 is entitled to a presumption of reasonableness. See
Mondragon-Santiago, 564 F.3d at 366-67. Zuniga’s policy-based arguments
attacking the underpinnings of § 2L1.2 essentially invite this court to engage in
impermissible “substantive second-guessing of the sentencing court.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 767 (5th Cir. 2008). He fails to
overcome the presumption of reasonableness afforded his sentence. See Alonzo,
435 F.3d at 554.
      AFFIRMED.




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