     Case: 09-40697     Document: 00511099862          Page: 1    Date Filed: 05/04/2010




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

                                                  FILED
                                                                             May 4, 2010
                                     No. 09-40697
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LUIS ROBERTO MENDEZ,

                                                   Defendant-Appellant

                            Consolidated with No. 09-40698

UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee
v.

LUIS ROBERTO MENDEZ-URIZA,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-556-1
                           USDC No. 1:09-CR-240-ALL


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40697 c/w 09-40698

      Luis Roberto Mendez, a.k.a. Luis Roberto Mendez-Uriza, pleaded guilty
to being unlawfully found in the United States after deportation and after
having committed a felony. As a result of this offense, his supervised release for
his prior conviction of transporting an illegal alien into the United States and of
being unlawfully found in the United States after deportation was revoked. He
was sentenced within the recommended guidelines range to 57 months of
imprisonment for being unlawfully found in the United States and to six months
of imprisonment on the revocation of his supervised release, to be served
consecutively.
      Mendez argues that his sentence was procedurally unreasonable because
the district court did not provide adequate reasons for it. Because Mendez did
not object concerning the district court’s explanation of his sentence at
sentencing, we review the issue for plain error only.       See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Mendez concedes that plain error is the proper standard of review, but
he preserves for further review the issue whether plain error is the correct
standard of review.
      To show plain error, a defendant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If the defendant makes such a showing, this court has
the discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Even if the district court’s explanation was insufficient and therefore
constituted clear or obvious error, Mendez concedes that he cannot show that an
explanation of his within-guidelines sentence would have changed his sentence
and thus affected his substantial rights. See Mondragon-Santiago, 564 F.3d at
364-65. Mendez contends that the district court’s error affected his substantial
rights because it prevented this court from conducting a thorough review of the
substantive reasonableness of his sentence. However, as Mendez concedes, this

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argument is foreclosed under Mondragon-Santiago. See Mondragon-Santiago,
564 F.3d at 365.
      Mendez also argues that his aggregate sentence of 63 months of
imprisonment was substantively unreasonable. Mendez preserved this issue by
objecting in the district court as to his 57-month sentence, but not as to his six-
month revocation sentence, which will be reviewed for plain error only. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
      Mendez argues that a presumption of reasonableness should not apply to
his within-guidelines sentence because U.S.S.G. § 2L1.2 is “penologically flawed”
due to, inter alia, the fact that his 16-level enhancement was not based on
empirical evidence or study. Mendez concedes that this issue is foreclosed, and
he asserts that he is raising it to preserve it for further appellate review. As
Mendez concedes, this issue is foreclosed. See Mondragon-Santiago, 564 F.3d
at 367.
      Mendez also argues that the 16-level increase in his offense level
“overpunishe[d]” him for a “garden-variety prior alien-transporting offense,
where apparently no one was injured.” He contends that the length of his
aggregate 63-month sentence is particularly unjust given that he only returned
to the United States to retrieve his daughter from the custody of his ex-
girlfriend.
      Because Mendez’s 57-month sentence for being unlawfully found in the
United States was within the guidelines range and because Mendez has not
shown that the district court did not give proper weight to the Guidelines and
the 18 U.S.C. § 3553(a) sentencing factors, his sentence was presumptively
reasonable and entitled to great deference. See Campos-Maldonado, 531 F.3d
at 338. Mendez has not rebutted this presumption, and thus he has not shown
that the district court abused its discretion in sentencing him to 57 months of
imprisonment. See Gall, 552 U.S. at 51. Likewise, he has not shown that the
district court committed plain error in sentencing within the recommended

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guidelines range for the revocation of his supervised release. See U.S.S.G.
§ 7B1.3(f); Whitelaw, 580 F.3d at 259-60.
      AFFIRMED.




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