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

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50167
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE LUIS ZUNIGA-MENDEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-2131-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Luis Zuniga-Mendez appeals the 46-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the sentence was greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a) and
was therefore substantively unreasonable. Specifically, Zuniga-Mendez argues
that the Guidelines overstated the seriousness of his non-violent illegal reentry



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-50167

offense and failed to account for his benign motives for returning to the United
States.
      This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”       United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Zuniga-Mendez contends that the presumption of reasonableness should
not apply to sentences calculated under U.S.S.G. § 2L1.2 because that provision
lacks an empirical basis and double counts a defendant’s criminal history. As
he acknowledges, his argument is foreclosed by circuit precedent. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130
S. Ct. 192 (2009); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).
      The district court considered Zuniga-Mendez’s request for a downward
variance, and it ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. Zuniga-Mendez’s assertions that the non-violent
nature of his offense and his motive for reentering the United States justified a
lower sentence are insufficient to rebut the presumption of reasonableness. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008). As Zuniga-Mendez has not demonstrated that the district
court’s imposition of a sentence at the bottom of the guidelines range was an
abuse of discretion, the district court’s judgment is AFFIRMED.




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