     Case: 09-50458     Document: 00511053197          Page: 1    Date Filed: 03/16/2010




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

                                                  FILED
                                                                           March 16, 2010
                                     No. 09-50458
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

MIGUEL ANGEL VIEZCAS-SAENZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-245-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Miguel Angel Viezcas-Saenz pleaded guilty to illegally reentering the
United States after deportation.          He was sentenced to a 70-month term of
imprisonment, at the bottom of the advisory range provided by the Sentencing
Guidelines. Viezcas-Saenz argues that his sentence is unreasonable because the
Guidelines overstated the seriousness of his offense, which was not intrinsically
wrong, and failed to take into account the mitigating nature of his cultural
assimilation and his motive for returning to the United States.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-50458

      Viezcas-Saenz acknowledges that two additional arguments that he raises
are foreclosed. He argues that the appellate presumption of reasonableness
would be improper because U.S.S.G. § 2L1.2 lacked an empirical foundation, and
that the guideline range reflected an unwarranted disparity between defendants
who can participate in a fast-track program and defendants who cannot. Indeed,
we have previously rejected such claims. United States v. Mondragon-Santiago,
564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v.
Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      Generally, we review the substantive reasonableness of a sentence for an
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Absent an
objection, we review the substantive reasonableness of a sentence for plain error
only. See United States v. Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007), cert.
denied, 128 S. Ct. 2959 (2008). Although Viezcas-Saenz requested a downward
variance, he did not specifically object to the reasonableness of the sentence
imposed.   However, we need not decide which standard governs review of
Viezcas-Saenz’s claim because he is unable to prevail under either standard.
      The district court considered and rejected Viezcas-Saenz’s arguments for
a sentence below the guideline range.        The district court stated that in
determining Viezcas-Saenz’s sentence it had treated the Guidelines as advisory
and had considered the Guidelines and the 18 U.S.C. § 3553(a) factors, and it
noted Viezcas-Saenz’s criminal history, his cultural assimilation, and the nature
of his offense. Thus, the record demonstrates that the district court considered
the § 3553(a) factors, including the specific concerns that Viezcas-Saenz now
raises, to determine that a sentence at the bottom of the guideline range was
sufficient but not greater than necessary to achieve the goals of § 3553(a). Id.
at 55-58. Because it is within the guideline range, Viezcas-Saenz’s sentence is
entitled to a presumption of reasonableness, see Mondragon-Santiago, 564 F.3d
at 361; United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008), and Viezcas-Saenz has shown no good reason for

                                        2
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                                  No. 09-50458

us to disturb it. See Gall, 552 U.S. at 51 (stating that “the fact that the appellate
court might reasonably [conclude] that a different sentence [is] appropriate is
insufficient to justify reversal of the district court”).
      AFFIRMED.




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