     Case: 09-41135     Document: 00511112935          Page: 1    Date Filed: 05/17/2010




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

                                                  FILED
                                                                            May 17, 2010
                                     No. 09-41135
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RUTILIO ACOSTA-MENDOZA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-698-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Rutilio Acosta-Mendoza appeals the 52-month term of imprisonment
imposed following his guilty-plea conviction for being illegally present in the
United States following deportation. 8 U.S.C. § 1326. He asserts the district
court erred in applying Sentencing Guideline § 2L1.2 (unlawfully entering or
remaining in the United States) because it was not empirically based. Further,
he contends that his sentence, despite being within the applicable guideline-
sentencing range, was both procedurally and substantively unreasonable.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-41135

      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).
      As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a significant procedural error. Id. at 752-53. If, as in this case, there
is no such error, we then review the substantive reasonableness of the sentence
imposed, as noted above, for an abuse of discretion. Id. at 751-53. “[A] sentence
within a properly calculated Guideline range is presumptively reasonable”.
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Acosta first contends the district court erred in applying the applicable
Guideline, § 2L1.2, because it was not empirically based. This contention is
foreclosed by United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009). See also United States v. Mondragon-Santiago,
564 F.3d 357, 367 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      Acosta next contends his sentence is procedurally unreasonable because
the district court failed to provide sufficient reasons for imposing a within-
guidelines sentence. Because Acosta did not object on this basis in district court,
review is only for plain error. See Mondragon-Santiago, 564 F.3d at 364. To
establish reversible plain error, Acosta must show the district court committed
a clear or obvious error that affected his substantial rights; even then, we have
discretion whether to correct such error and, generally, will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial

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                                 No. 09-41135

proceedings. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert.
denied, 129 S. Ct. 962 (2009). Because nothing in the record indicates the
district court would have imposed a different sentence had it provided more
explanation, Acosta has not shown that the district court’s error, if any, affected
his substantial rights. See Mondragon-Santiago, 564 F.3d at 363-64.
      Acosta also asserts his sentence is substantively unreasonable because it
was greater than needed to accomplish the goals of 18 U.S.C. § 3553(a) (factors
to be considered in sentencing). Because Acosta did not object in district court
to the substantive reasonableness of the sentence, review is again only for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Acosta’s
disagreement with the within-guidelines sentence imposed does not suffice to
rebut the presumption of reasonableness. See Gall, 552 U.S. at 51; United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); Alonzo, 435 F.3d at 554.
      AFFIRMED.




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