     Case: 11-51129     Document: 00511990054         Page: 1     Date Filed: 09/17/2012




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

                                                                            FILED
                                                                        September 17, 2012
                                     No. 11-51129
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OMAR ALEJANDRO MARTINEZ-PRADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-551-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Omar Alejandro Martinez-Prado appeals the
sentence imposed following his guilty plea conviction of illegal reentry into the
United States. His sentence comprises 66 months of imprisonment and three
years of supervised release. He contends that the 66-month prison sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals outlined in 18 U.S.C. § 3553(a). Conceding that he failed to
object in the district court, Martinez-Prado nevertheless asserts that plain error

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51129   Document: 00511990054     Page: 2   Date Filed: 09/17/2012

                                 No. 11-51129

review should not apply because no objection is required to preserve the issue of
the substantive reasonableness of a sentence. He acknowledges, however, that
the issue is foreclosed and that he raises it to preserve the issue for further
review. We have held that a defendant’s failure to object at sentencing to the
reasonableness of his sentence mandates plain error review only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). But, even if we reviewed
for an abuse of discretion, his arguments are unavailing. See Gall v. United
States, 552 U.S. 38, 51 (2007) (reviewing a substantive reasonableness of a
sentence for an abuse of discretion).
      As Martinez-Prado’s prison sentence was within the properly calculated
guidelines range of 57 to 71 months of imprisonment, it is entitled to a
presumption of reasonableness. See United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The district court determined that a sentence in the middle of the
guidelines range was appropriate, given Martinez-Prado’s criminal history and
his illegal reentry within one year after deportation. Martinez-Prado has not
shown a clear error of judgment on the district court’s part in balancing the
§ 3553(a) factors. See Cooks, 589 F.3d at 176. He has thus failed to rebut the
presumption of reasonableness that we apply to his within-guidelines sentence.
See Campos-Maldonado, 531 F.3d at 338.
      Martinez-Prado nevertheless contends that the presumption of
reasonableness should not be applied to his sentence because the illegal reentry
guideline lacks an empirical basis. This argument too is raised to preserve the
issue for further review because, as he acknowledges, it is foreclosed. See



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  Case: 11-51129    Document: 00511990054    Page: 3   Date Filed: 09/17/2012

                                No. 11-51129

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).
      As Martinez-Prado has not shown any error, much less plain error, in his
sentencing, we AFFIRM the judgment of the district court.




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