     Case: 11-50753     Document: 00511859291         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-50753
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SALVADOR GARCIA-RAMIREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1029-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Salvador Garcia-Ramirez (Garcia) appeals the 54-
month within-guidelines sentence imposed following his guilty-plea conviction
for illegal reentry into the United States following deportation.                    Garcia
challenges the substantive reasonableness of his sentence, claiming that illegal
reentry guidelines lack an empirical basis and that sentences based on those
guidelines should not be afforded a presumption of reasonableness. He also
contends that the conviction used to enhance his sentence was more than ten

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50753     Document: 00511859291   Page: 2   Date Filed: 05/17/2012

                                 No. 11-50753

years old and that he would not have received as great an increase in offense
level based on the 2011 amendments to U.S.S.G. § 2L1.2(b)(1)(A). Garcia asserts
that the sentence imposed by the district court did not accurately reflect his
personal history and characteristics, including the facts that (1) he had been
living in the United States since 1992, (2) he has two minor children who are
United States citizens, (3) the woman with whom he has a relationship has been
diagnosed with cancer, and (4) his motive for returning to the United States,
which was based on his ties to the country, mitigates the seriousness of his
offense.
      Garcia concedes that plain error review applies because he did not
challenge the reasonableness of his sentence before the district court. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). He raises this
issue only to preserve it for possible review by the Supreme Court. He also seeks
to preserve for review his contention that the appellate presumption of
reasonableness should not apply to sentences imposed under U.S.S.G. § 2L1.2
because that provision lacks an empirical basis. We have previously rejected
this contention. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009).
      The district court did not err in imposing a sentence based on the
guidelines in effect at the time of Garcia’s sentencing. See United States v.
Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007). With respect to the age of
the prior conviction that was used to enhance Garcia’s offense level, “the
staleness of a prior conviction used in the proper calculation of a guidelines-
range sentence does not render a sentence substantively unreasonable” and does
not “destroy the presumption of reasonableness that attaches to such sentences.”
United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). Neither does
Garcia’s contention regarding his cultural ties and his benign motive for reentry
rebut that presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-
66 (5th Cir. 2008).

                                       2
   Case: 11-50753   Document: 00511859291      Page: 3   Date Filed: 05/17/2012

                                  No. 11-50753

      The record establishes that the district court listened to and rejected
Garcia’s arguments for a lower sentence and that the court considered the 18
U.S.C. § 3553(a) factors, including Garcia’s personal history and characteristics,
prior to imposing a sentence within the Guidelines. Garcia neither has rebutted
the presumption of reasonableness of his within-guidelines sentence nor shown
that the district court plainly erred by imposing a 54-month sentence. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      AFFIRMED.




                                        3
