     Case: 09-50865     Document: 00511214028          Page: 1    Date Filed: 08/25/2010




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

                                                 FILED
                                                                           August 25, 2010
                                     No. 09-50865
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDUARDO OLMEDO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-3386-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Eduardo Olmedo appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. The district court sentenced Olmedo to 70 months
imprisonment and three years supervised release, a sentence at the low end of
the guidelines range.
        Olmedo contends that the sentence was unreasonable because it was
greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He maintains

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50865   Document: 00511214028 Page: 2        Date Filed: 08/25/2010
                                No. 09-50865

that the Guideline on which his sentence was based, U.S.S.G. § 2L1.2, was not
based on empirical data, making the guidelines range excessive even in a normal
case. He claims that the guidelines sentence range was excessive because his
prior federal drug conviction both increased his offense level by 16 and resulted
in six criminal history points. Olmedo also asserts that the sentence was too
severe because his offense amounted to an international trespassing offense. He
argues that the sentence was excessive because he had lived in the United States
since he was five years old and because the district court based the sentence on
its view that it had imposed a lenient sentence for Olmedo’s prior drug
conviction.
      The district court considered and rejected Olmedo’s arguments for a
sentence below guidelines range. With explicit reference to the § 3553(a) factors
of deterrence and promoting the respect of law, it determined that a sentence
within the guidelines range was appropriate. Although § 2L1.2 may not be
based on empirical data, the presumption of reasonableness still applies to
sentences within a guidelines range properly calculated under § 2L1.2. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009). Both the international trespass and the double
counting of prior convictions contentions that Olmedo raises have been raised
previously in this court without success. See United States v. Aguirre-Villa, 460
F.3d 681, 683 (5th Cir. 2006); United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009).    Even though the district court
considered that it had given Olmedo a lenient sentence for his prior drug
conviction, Olmedo has not shown that this was improper. See United States v.
Lee, 358 F.3d 315, 328-29 (5th Cir. 2004). As Olmedo was sentenced within the
guidelines range, the sentence is entitled to a presumption of reasonableness,
and Olmedo has not shown sufficient reason to overcome that presumption. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.

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