     Case: 12-51159       Document: 00512329808         Page: 1     Date Filed: 08/02/2013




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

                                                                            FILED
                                                                           August 2, 2013
                                     No. 12-51159
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR MANUEL ZUBIA-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1930-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Hector Manuel Zubia-Martinez appeals the 46-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326. Zubia-Martinez contends that the
sentence is substantively unreasonable because it was greater than necessary
to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a). He argues
that the guidelines range was too severe because it overstated the seriousness
of his 22-year-old conviction and failed to account for his personal history and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51159

characteristics, specifically, the influence of alcohol on many of his prior offenses
and his serious health issues.
      Although Zubia-Martinez acknowledges that we apply plain error review
when a defendant fails to object to the reasonableness of the sentence imposed
in the district court, he also seeks to preserve the issue for further review.
Because Zubia-Martinez did not object to the substantive reasonableness of his
sentence in the district court, plain error review applies. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      “When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the . . . § 3553(a)
factors, we will give great deference to that sentence and will infer that the judge
has considered all the factors for a fair sentence set forth in the Guidelines in
light of the sentencing considerations set out in § 3553(a).” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks
and citation omitted). “A discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.” Id.
      Zubia-Martinez contends that the presumption of reasonableness should
not apply because U.S.S.G. § 2L1.2 is not empirically based and therefore
produces a sentencing range too high to fulfill § 3553(a)’s goals. He concedes
that his argument is foreclosed by circuit precedent but seeks to preserve the
issue for further review. As Zubia-Martinez concedes, we have consistently
rejected his “empirical data” argument. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357,
366 (5th Cir. 2009).
      The district court considered Zubia-Martinez’s request for a downward
variance and ultimately determined that a sentence at the bottom of the
applicable guidelines range was appropriate based on the circumstances of the
case and the § 3553(a) factors. Zubia-Martinez’s assertions that the age of his
prior conviction and his medical condition justified a lower sentence are

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                                 No. 12-51159

insufficient to rebut the presumption of reasonableness. See United States v.
Rodriguez, 660 F.3d 231, 233-34 (5th Cir. 2011) (holding that the staleness of a
prior conviction used in the proper calculation of a guidelines range does not
render a sentence substantively unreasonable and does not preclude a
presumption of reasonableness); United States v. Rodriguez, 523 F.3d 519, 526
(5th Cir. 2008) (determining that a below-guidelines sentence was not warranted
for a defendant who suffered from sickle cell anemia, Hepatitis C, blackouts, and
upper respiratory illness). Therefore, Zubia-Martinez has failed to show that his
46-month within-guidelines sentence is substantively unreasonable, and there
is no reversible plain error. See Campos-Maldonado, 531 F.3d at 339. The
district court’s judgment is AFFIRMED.




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