     Case: 10-20430 Document: 00511469165 Page: 1 Date Filed: 05/06/2011




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

                                                 FILED
                                                                             May 6, 2011
                                     No. 10-20430
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOEL OBED MERCADO LOPEZ, also known as Joel Obed Mercado, also known
as Joel Obed Mercado-Lopez,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:10-CR-66-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Joel Obed Mercado Lopez appeals the sentence imposed following his
guilty-plea conviction for illegal reentry following deportation after an
aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2). He
argues that his sentence was substantively unreasonable because it was greater
than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a).
Specifically, he argues that the district court put too much weight on his prior


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20430 Document: 00511469165 Page: 2 Date Filed: 05/06/2011

                                   No. 10-20430

deportations and criminal history and failed to take into account his cultural
assimilation and substance abuse problems. He states that his number of
deportations is not unusual for a person with an illegal reentry conviction. He
preserves for further review his argument that his sentence is not presumptively
reasonable because there is no empirical basis for U.S.S.G. § 2L1.2.            He
recognizes that his empirical basis argument is foreclosed by our precedent. See
United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      We review the substantive reasonableness of Mercado Lopez’s sentence for
an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As Mercado
Lopez raises his argument that his number of prior deportations is not higher
than that of most illegal immigrants for the first time on appeal, we review that
argument for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).
      Although cultural assimilation can be a mitigating factor, a sentencing
court is not required to accord cultural assimilation dispositive weight. See
United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Moreover,
Mercado       Lopez’s   substantive-reasonableness   contentions   constitute    a
disagreement with the district court’s weighing of the Section 3553(a) sentencing
factors and the appropriateness of his sentence. Mercado Lopez has failed to
rebut the presumption of reasonableness attached to his within-Guidelines
sentence. See Gall, 552 U.S. at 50-51; United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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