     Case: 09-41024     Document: 00511131031          Page: 1    Date Filed: 06/03/2010




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

                                                  FILED
                                                                            June 3, 2010
                                     No. 09-41024
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JORGE ALBERTO SURA-VILLALTA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-599-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jorge Alberto Sura-Villalta (Sura) appeals the 46-month within-guidelines
sentence imposed in connection with his guilty-plea conviction for illegal reentry
following deportation. Sura, citing Kimbrough v. United States, 552 U.S. 85
(2007), argues that his sentence is procedurally unreasonable because U.S.S.G.
§ 2L1.2 is not empirically based and is flawed. He also contends that the
presumption of reasonableness should not be applied to his sentence because
§ 2L1.2 is not based on empirical data. Sura further argues that his sentence is

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41024   Document: 00511131031 Page: 2        Date Filed: 06/03/2010
                                No. 09-41024

substantively unreasonable because it is based on a conviction that occurred in
1995, the district court failed to consider questionable circumstances
surrounding the 1995 rape conviction, and the court failed to consider his
motives for returning to the United States. In consideration of these factors,
Sura asserts that his 46-month sentence is greater than necessary to accomplish
the sentencing objectives of 18 U.S.C. § 3553(a) and contends that he should
have been sentenced below the guidelines range.
      In reviewing a sentence, this court first examines whether the district
court committed any procedural errors, “such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the chosen sentence--
including an explanation for any deviation from the Guidelines range.” Gall v.
United States, 552 U.S. 38, 51 (2007).
      Sura’s argument that this court should not accord his within-guidelines
sentence a presumption of reasonableness because the applicable guideline is not
supported by empirical data is foreclosed. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Sura acknowledges this argument is foreclosed but raises the issue to
preserve it for possible further review.
      Sura’s contention that his sentence is procedurally unreasonable because
§ 2L1.2 is not based on empirical data is without merit. “Whatever appropriate
deviations [Kimbrough] may permit or encourage at the discretion of the district
judge, Kimbrough does not force district or appellate courts into a piece-by-piece
analysis of the empirical grounding behind each part of the sentencing
guidelines.” Duarte, 569 F.3d at 530. The district court’s rejection of Sura’s
argument in this regard was not procedural error.



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                                No. 09-41024

      The substantive reasonableness of Sura’s sentence is reviewed for abuse
of discretion. Gall, 552 U.S. at 51. A sentence imposed within a properly
calculated guidelines range is presumptively reasonable.        United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006)
      Sura’s argument that his sentence does not take into account questionable
circumstances surrounding his prior rape conviction is without merit. The
record shows that the district court listened to Sura’s arguments but ultimately
determined that a sentence within the guidelines range was appropriate. Sura’s
assertions regarding the age of his prior conviction and his motive for reentering
the United States are insufficient to rebut the presumption of reasonableness.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Sura
has not demonstrated that the district court’s imposition of a sentence at the
bottom of the guidelines range was an abuse of discretion.
      The district court’s judgment is AFFIRMED.




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