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

                                                 FILED
                                                                             May 1, 2009
                                     No. 08-51072
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JUAN JOSE VASQUEZ-GARCIA also known as, Cesilio Miranda

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-1532-1


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Jose Vasquez-Garcia (Vasquez) appeals the 77-month sentence
imposed by the district court following his guilty-plea conviction for being found
unlawfully present in the United States subsequent to having been removed.
See 8 U.S.C. § 1326. He argues that the within-guidelines sentence imposed by
the district court is unreasonable because the sentence is greater than necessary
to fulfill the sentencing purposes of 18 U.S.C. § 3553(a). Relying on Kimbrough



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-51072

v. United States, 128 S. Ct. 558 (2007), he argues that the illegal reentry
Guideline, U.S.S.G. § 2L1.2, is flawed because it is not empirically based.
      Regardless of whether a “particular Guideline is . . . empirically-based,”
this court “presume[s] a sentence within the current version of the Guidelines
to be reasonable, and the defendant must rebut that presumption to
demonstrate substantive unreasonableness.”       United States v. Mondragon-
Santiago, __ F.3d __ , No. 07-41099, 2009 WL 782894, at *3, *9 (5th Cir. Mar. 26,
2009). The district court imposed the 77-month sentence after commenting on
Vasquez’s continued disregard for the law after his last illegal reentry
conviction. Given the district court’s commentary, it cannot be said that the
court failed to consider the factors of Section 3553(a). Vasquez has not rebutted
the presumption that his sentence is reasonable. See Mondragon-Santiago, 2009
WL 782894 at *9.
      AFFIRMED.




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