     Case: 10-40277     Document: 00511252075          Page: 1    Date Filed: 10/04/2010




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

                                                 FILED
                                                                           October 4, 2010
                                     No. 10-40277
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FABIAN LECHUGA-ESPARZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-992-1


Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Fabian Lechuga-Esparza was convicted of one count of illegal reentry into
the United States and was sentenced to serve 46 months in prison. In this
appeal, he contends that his sentence is unreasonable because the district court
failed to accord the proper amount of weight to his mitigating factors, such as his
reasons for returning to the United States, and gave too much weight to other
factors, such as his criminal history, without taking into consideration the fact
that his prior offenses were due to his former drug addiction. Because Lechuga-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40277    Document: 00511252075 Page: 2       Date Filed: 10/04/2010
                                 No. 10-40277

Esparza failed to mention his drug problem to the district court, his argument
concerning this factor is reviewed for plain error only. Puckett v. United States,
129 S. Ct. 1423, 1428-29 (2009); United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). His remaining arguments concerning the reasonableness of his
sentence are unavailing, and our review of the record and pertinent
jurisprudence shows no abuse of discretion in connection with the sentence
imposed. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
      Insofar as Lechuga-Esparza challenges the district court’s weighing of his
mitigating sentencing factors, this argument amounts to a disagreement with
the district court’s analysis of these factors and the appropriateness of his
within-guidelines sentence. This disagreement does not suffice to show error in
connection with his sentence. United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008). Lechuga-Esparza has not rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence, nor has he
shown that his sentence was unreasonable. United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005); United States v. Alonzo, 435 F.3d 551, 554-55 (5th
Cir. 2006).
      Additionally, Lechuga-Esparza preserves for further review a challenge to
the presumption of reasonableness on the basis that § 2L1.2 is not empirically
grounded. This challenge is, as he concedes, unavailing under our prior cases.
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir.), cert. denied, 130 S. Ct. 192 (2009).
      AFFIRMED.




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