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

                                                 FILED
                                                                          October 21, 2009
                                     No. 09-40090
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

DANIEL ISAAC CU-YANES, also known as Daniel Isaac Cu-Yanez, also known
as Edgar Geovanni-Lopez, also known as Edgar Geovanni Guzman,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-701-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Daniel Cu-Yanes appeals his 60-month sentence imposed following his
guilty plea conviction to being found unlawfully in the United States following
deportation.       Cu-Yanes argues that his sentence is procedurally and
substantively unreasonable.
       In imposing sentence, a district court             must properly calculate and
consider the guidelines sentencing range, along with the sentencing factors set


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40090

forth in § 3553(a).1 The appellate court must determine whether the district
court committed any significant procedural error, such as failing to to consider
the § 3553(a) factors.2
       For the first time on appeal, Cu-Yanes asserts that the district court failed
to properly consider the § 3553(a) factors.              Though he did argue that the
sentence was greater than necessary, that contention did not raise an issue
regarding the procedural reasonableness of a sentence.3 Thus, we review the
procedural reasonableness of Cu-Yanes’s sentence for plain error only.4 The
record reflects that the district court acknowledged that Cu-Yanes was seeking
a downward departure based on the facts underlying his prior conviction and
indicated that counsel’s argument was the reason that it was imposing a
sentence at the low end of the guidelines range. Accordingly, the district court
considered Cu-Yanes’s arguments in imposing sentencing and provided a
reasoned basis for its decision.5
       The district court also considered Cu-Yanes’s history of unlawfully
entering the United States on several occasions without receiving any criminal
penalty, as well as his three prior deportations; as a result, it determined that
there was a need to impose a sentence adequate to deter Cu-Yanes from future
illegal conduct and to protect the public. The record reflects that the district
court properly considered the § 3553(a) factors. Even assuming that there was
an omission by the district court that constituted “error,” Cu-Yanes has not
shown that his substantial rights were affected because he did not prove that the

       1
           United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
       2
           United States v. Gall, 522 U.S. 38, 128 S. Ct. 586, 597 (2007).
       3
          See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition
for cert. filed (June 24, 2009) (No. 08-11099).
       4
        See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied,
129 S. Ct. 328 (2008).
       5
           Rita v. United States, 551 U.S. 338, 356 (2007).

                                                2
                                       No. 09-40090

error affected the sentencing outcome.6 The district court indicated that, but for
counsel’s argument, it would have imposed a higher sentence, and it stated
emphatically that it would not impose a sentence below sixty months. Cu-Yanes
has not shown a procedural error that renders the sentence unreasonable.
      Cu-Yanes argues that the sentence was substantively unreasonable
because it was greater than necessary to effectuate the purposes of sentencing.
He argues that the district court should have departed downward or made a
downward variance because the sixteen-level enhancement of his offense level
was only technically applicable in light of the mitigating circumstances
surrounding his prior offenses.
      In reviewing a sentence, this court should “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”7
A discretionary sentence imposed within a properly calculated guidelines range
is presumptively reasonable.” 8           The district court considered Cu-Yanes’s
arguments and, as discussed above, gave proper weight to the § 3553(a) factors.
The decision to impose a within-the-guidelines sentence, along with the district
court’s reasons for denying the downward departure or variance, indicates that
the district court determined that Cu-Yanes’s case was a typical case in which
the Guidelines provided the appropriate sentence in light of the § 3553(a)
factors.9 Cu-Yanes has not rebutted the presumption that his sentence at the
lower end of the guideline range was reasonable. Based on the totality of the
circumstances, the district court did not abuse its discretion in imposing the 60-
month sentence.10


      6
          Mondragon-Santiago, 564 F.3d at 364–65.
      7
          Gall, 128 S. Ct. at 597.
      8
          Campos-Maldonado, 531 F.3d at 338.
      9
          United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      10
           Gall, 128 S. Ct. at 597.

                                              3
                                     No. 09-40090

      Cu-Yanes preserves an argument that the presumption of reasonableness
should not apply to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the sixteen-level
enhancement provided therein was not the result of empirical evidence or a
study.     He acknowledges that this argument is foreclosed by this court’s
precedent.11
      The sentence is AFFIRMED.




      11
           See Mondragon-Santiago, 564 F.3d at 366–67.

                                            4
