     Case: 09-50470     Document: 00511027459          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-50470
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NEMECIO MARTINEZ-LEDESMA, also known as Ignacio Salinas-Ledesma,
also known as Macario Gonzalez-Martinez, also known as Ignacio Salinas
L., also known as Ignacio Salinas, also known as Raul Martinez-Lederma, also
known as Ignacio Salinas Ledezma, also known as Raul Martinez Ledezma, also
known as Raul Martinez Ledezman, also known as Ledesma I. Salinas, also
known as Nemecio Ledezma Martinez, also known as Nemecio Martinez L., also
known as Jose Maria Flores-Ledezma, also known as Jose Flores,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-307-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Nemecio Martinez-Ledesma (Martinez) pleaded guilty to illegal reentry
after removal. See 8 U.S.C. § 1326. He now appeals his within-guidelines
sentence of 37 months. Martinez contends that his sentence was greater than

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50470   Document: 00511027459 Page: 2        Date Filed: 02/12/2010
                                No. 09-50470

necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was
therefore unreasonable. Specifically, Martinez argues that the guidelines range
was too severe because United States Sentencing Guideline § 2L1.2 was not
empirically based and gave excessive weight to his criminal history and to prior
convictions more than 15 years old. He also argues that the guidelines range
failed to account for his age and the decrease in recidivism that accompanies
aging. He contends that the presumption of reasonableness applicable to within-
guidelines sentences should not be applied in this case.
      “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.), cert. denied, 129 S. Ct. 328 (2008). Because Martinez
did not object in the district court to the reasonableness of his sentence, review
is for plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009).
      This court has consistently rejected Martinez’s “empirical data” argument.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, 130 S.
Ct. 378 (2009). The district court considered Martinez’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. Martinez’s assertions regarding § 2L1.2’s lack of
an empirical basis, the age of his last conviction, the nonviolent nature of his
offense, and his age are insufficient to rebut the presumption of reasonableness.
See Campos-Maldonado, 531 F.3d at 338. As Martinez has not demonstrated
that the district court’s imposition of a sentence at the bottom of the guidelines
range was plain error, the district court’s judgment is AFFIRMED.




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