     Case: 09-50916     Document: 00511196546          Page: 1    Date Filed: 08/06/2010




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

                                                 FILED
                                                                           August 6, 2010
                                     No. 09-50916
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HERMELINDO ANGELES-TREJO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-131-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Hermelindo Angeles-Trejo challenges his within-guidelines sentence of 37
months’ imprisonment, imposed following his guilty-plea conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. He claims: his aggravated assault
conviction was overemphasized by Sentencing Guideline § 2L1.2 (unlawfully
entering or remaining with the United States), and, therefore, his sentence is
greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a); and,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50916      Document: 00511196546 Page: 2      Date Filed: 08/06/2010
                                   No. 09-50916

he should have been sentenced below the Guidelines range because of his benign
motives for reentry.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the Guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      Angeles challenges the substantive reasonableness of his sentence;
therefore, as noted above, our review is for an abuse of discretion. Because
Angeles’ sentence was within the properly calculated Guidelines range, it is
presumed to be reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      Angeles’ contention that § 2L1.2’s emphasis on defendant’s criminal
history renders a sentence unreasonable is unconvincing. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). His
personal history and characteristics, including his motives for reentering the
United States, are also insufficient to rebut the presumption of reasonableness.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Angeles has not demonstrated that the district court’s imposition of a sentence
at the bottom of the Guidelines range was an abuse of discretion.
      Citing Kimbrough v. United States, 552 U.S. 85 (2007), Angeles also
contends that his sentence should not be accorded a presumption of
reasonableness because the illegal-reentry Guideline, § 2L1.2, is not supported
by empirical data. He acknowledges, however, that this contention is foreclosed




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                                No. 09-50916

by our court’s precedent and raises it only to preserve it for further review. See
Duarte, 569 F.3d at 529-31.
      AFFIRMED.




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