     Case: 10-40045 Document: 00511323777 Page: 1 Date Filed: 12/16/2010




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

                                                 FILED
                                                                          December 16, 2010
                                     No. 10-40045
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PORFIRIO GARCIA-BARAONA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1878-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Porfirio Garcia-Baraona (Garcia) appeals the 63-month sentence imposed
following his guilty plea conviction for illegal reentry after a previous
deportation. He argues that his within-guidelines sentence is substantively
unreasonable.
       As    a   threshold    matter,     Garcia    argues     that   a    presumption      of
reasonableness should not apply to his within-guidelines sentence on appellate
review because the Guideline upon which it is based, U.S.S.G. § 2L1.2, is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40045 Document: 00511323777 Page: 2 Date Filed: 12/16/2010

                                   No. 10-40045

penologically flawed and not the result of empirical evidence or study. As Garcia
acknowledges,    this   argument    is   foreclosed.    See   United   States   v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009); see also United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).
      Citing cases from the Ninth and Tenth Circuits, Garcia asserts that, even
if the presumption of reasonableness applies, it is rebutted by the facts and
circumstances of this case. He emphasizes the staleness of his 1999 conviction,
which occurred approximately 11 years prior to the present offense and formed
the basis of his 16-level enhancement under § 2L1.2. During that 11-year
interval, however, Garcia was imprisoned for about six to seven years and then
committed the instant illegal reentry offense while on probation for his 1999
conviction.
      The district court considered and rejected Garcia’s arguments for a
sentence below his advisory guidelines range. With reference to the sentencing
factors of 18 U.S.C. § 3553(a) and the arguments made during allocution, the
court determined that a sentence at the bottom of Garcia’s guidelines range was
indicated. While Garcia provided mitigating evidence, he has not rebutted the
presumption of reasonableness attaching to his within-guidelines sentence.
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). The district court did not
abuse its discretion by ordering a 63-month sentence. Gall v. United States, 552
U.S. 38, 51 (2007).
      The district court’s judgment is AFFIRMED.




                                         2
