     Case: 09-50904     Document: 00511117777          Page: 1    Date Filed: 05/20/2010




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

                                                  FILED
                                                                            May 20, 2010
                                     No. 09-50904
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

JULIES FLEMEN CASTILLO, Jose Murillo-Calex, also known as Julio Flemen
Castillo,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-375-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Julies Flemen Castillo appeals the 57-month within-guidelines sentence
imposed following his guilty-plea conviction for illegal reentry in violation of 8
U.S.C. § 1326. Castillo argues that his sentence is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a). He contends that the advisory
guidelines range (1) was based on a Guideline that is not empirically based,
(2) overstated the seriousness of his unlawful entry offense, (3) failed to


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50904    Document: 00511117777 Page: 2         Date Filed: 05/20/2010
                                 No. 09-50904

adequately reflect his personal history and characteristics, (4) failed to deter
future crime and protect the public, and (5) failed to account for the sentencing
disparity caused by the lack of a fast-track program.
      Because Castillo objected to the substantive reasonableness of his sentence
in the district court, this court’s review is for an abuse of discretion. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008), cert. denied, 129 S. Ct. 328 (2008). Castillo argues that his sentence
should not be subject to the presumption of reasonableness but he concedes that
this argument is foreclosed by circuit precedent. See United States v. Duarte,
569 F.3d 528, 530 (5th Cir. 2009), cert. denied, 130 S. Ct. 378 (2009).
      The district court stated that in sentencing Castillo it had taken into
account the advisory Sentencing Guidelines and policy statements, the 18
U.S.C. § 3553(a) factors, the parties’ sentencing arguments, and the factual
information in the presentence report. The district court did not abuse its
discretion by not considering whether the 16-level enhancement was not
supported by empirical data. See, e.g., United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 130 S. Ct. 192 (2009). This
court has also rejected Castillo’s double-counting argument. See Duarte, 569
F.3d at 529-31. Castillo’s arguments are insufficient to rebut the presumption
of reasonableness. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 2010 WL 637943 (Mar. 22, 2010) (No. 09-9216); United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).             Castillo has not
demonstrated that the district court’s imposition of a sentence at the bottom of
the guidelines range was an abuse of discretion.
      The district court’s judgment is AFFIRMED.




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