     Case: 13-20207      Document: 00512594586         Page: 1    Date Filed: 04/14/2014




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

                                                                                   FILED
                                    No. 13-20207                               April 14, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMILIO DE LA GARZA-MONTEMAYOR, also known as Emilio Del La Garza-
Montemayor, also known as Emilio DeLaGarza, also known as Emilio
Montemayor DeLaGarza, also known as Emilio DeLaGarza-Montemayor, also
known as Emmillio DeLaGarza, also known as Emmillo De La Garza,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:12-CR-418-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Emilio De La Garza-Montemayor
has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). De La Garza-Montemayor has filed a response. We have


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20207    Document: 00512594586       Page: 2   Date Filed: 04/14/2014


                                   No. 13-20207

reviewed counsel’s brief and the relevant portions of the record reflected
therein, as well as De La Garza-Montemayor’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. In his response, De La Garza-Montemayor contends, inter
alia, that his below-range sentence should not be entitled to a presumption of
reasonableness because his guideline sentencing range was calculated under
U.S.S.G. § 2L1.2, which he argues is not based on empirical evidence. That
contention is foreclosed, see United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009), but by raising the argument De La Garza-Montemayor has
preserved it for further review.
      Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.




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