     Case: 10-40276 Document: 00511389636 Page: 1 Date Filed: 02/22/2011




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

                                                 FILED
                                                                          February 22, 2011
                                     No. 10-40276
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

OSMAN MARCOS ROSALES,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-759-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Osman Marcos Rosales appeals following his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to
84 months of imprisonment, to run consecutively to an 18-month revocation
sentence, and three years of supervised release.               He argues the 84-month
sentence is substantively unreasonable because it is greater than necessary to
meet the sentencing goals outlined in 18 U.S.C. § 3553(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40276 Document: 00511389636 Page: 2 Date Filed: 02/22/2011

                                  No. 10-40276

      Because the sentence was within the properly calculated guidelines range
of 84 to 105 months of imprisonment, it is entitled to a presumption of
reasonableness. See United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir. 2008) (per curiam). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930
(2010).
      The district court had before it both mitigating and aggravating factors
and determined that a sentence at the low end of the guidelines range was
appropriate. Rosales has not shown that the district court’s balancing of these
factors “represents a clear error of judgment.” Id.; see also Rita v. United States,
551 U.S. 338, 359-60 (2007). He has thus failed to rebut the presumption of
reasonableness     that   we    apply   to   his   guidelines    sentence.      See
Campos-Maldonado, 531 F.3d at 338.
      Rosales raises one additional argument, which he acknowledges is
foreclosed by our precedent, to preserve for further review. He argues that the
presumption of reasonableness should not be applied to his sentence because
U.S.S.G. § 2L1.2, the illegal reentry Guideline, lacks an empirical basis. We
have consistently rejected Rosales’s argument, concluding that Kimbrough v.
United States, 552 U.S. 85 (2007), does not question the presumption of
reasonableness and does not require district or appellate courts to independently
analyze the empirical grounding behind each individual guideline. See United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009).
      The judgment of the district court is AFFIRMED.



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