     Case: 10-50521 Document: 00511428825 Page: 1 Date Filed: 03/30/2011




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

                                                 FILED
                                                                           March 30, 2011
                                     No. 10-50521
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SAMUEL SEVILLA-RODRIGUEZ, also known as Samuel Ortiz-Savillon, also
known as Samuel S. Rodriguez, also known as Oscar Homusor,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CR-879-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Samuel Sevilla-Rodriguez appeals the 41-month sentence imposed in
connection with his guilty plea conviction for illegal reentry. He argues that his
sentence is unreasonable because it is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a). Specifically, Sevilla-Rodriguez contends
that the illegal reentry guideline produces excessive sentences because it is not
empirically based and overstates a defendant’s criminal history and that the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50521 Document: 00511428825 Page: 2 Date Filed: 03/30/2011

                                  No. 10-50521

guidelines range did not adequately reflect his motive for reentering the country
(reuniting with his son), his solid work history, or that this was his first illegal
reentry offense.
      Sevilla-Rodriguez’s sentence is at the low end of the properly calculated
guideline range and is presumptively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006); see also United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.) (rejecting the argument that a guidelines illegal reentry
sentence was unreasonable because the guideline is not empirically based and
emphasizes a defendant’s criminal history), cert. denied, 130 S. Ct. 378 (2009).
As Sevilla-Rodriguez concedes, his argument that the presumption should not
apply is foreclosed. United States v. Mondragon-Santiago, 564 F.3d 357, 367
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Sevilla-Rodriguez has not rebutted
the presumption that his within-guidelines sentence is reasonable. See United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008); United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The district court did
not abuse its discretion in sentencing Sevilla-Rodriguez to 41 months of
imprisonment. See Gall v. United States, 552 U.S. 38, 51 (2007).
      AFFIRMED.




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