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

                                                FILED
                                                                 June 17, 2009
                                No. 08-51031
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RAFAEL ERNESTO CORVALAN-HERRERA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1341-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Rafael Ernesto Corvalan-Herrera (Corvalan) pleaded guilty to illegal
reentry after deportation and was sentenced to 37 months of imprisonment and
two years of supervised release.
      Corvalan argues that his sentence is not entitled to a presumption of
reasonableness because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not
supported by empirical evidence. “In appropriate cases, district courts certainly



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 08-51031

may disagree with the Guidelines for policy reasons and may adjust a sentence
accordingly. But if they do not, we will not second-guess their decisions under
a more lenient standard simply because the particular Guideline is not
empirically-based. United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th
Cir. 2009). Accordingly, Corvalan’s argument is unavailing.
      Corvalan contends that the district court committed procedural error when
it failed to give reasons for imposing his within-guidelines sentence. He also
contends that, notwithstanding the presumption of reasonableness accorded his
sentence, his sentence of imprisonment is greater than necessary to accomplish
the goals of sentencing listed in 18 U.S.C. § 3553(a) and, therefore, is
substantively unreasonable. Regardless whether the district court’s reasons for
sentencing were sufficient, Corvalan has not shown that his substantial rights
were affected, and thus he has not shown that the district court plainly erred by
failing to give sufficient reasons for his sentence. See Mondragon-Santiago, 564
F.3d at 364-65. Corvalan also has not shown that the district court committed
plain error by imposing a substantively unreasonable sentence. See id. at 361;
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied,
129 S. Ct. 328 (2008).
      AFFIRMED.




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