     Case: 09-50422     Document: 00511027431          Page: 1    Date Filed: 02/12/2010




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

                                                  FILED
                                                                          February 12, 2010
                                     No. 09-50422
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

IVAN ULISES GALARZA-RAMOS, also known as Ivan Ulises Galarza,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-3316-1


Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Ivan Ulises Galarza-Ramos (Galarza) appeals the 70-month sentence
imposed following his guilty plea conviction for illegal reentry following
deportation. He contends that the sentence was greater than necessary to
satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was therefore
substantively unreasonable. Specifically, Galarza argues that the guidelines
range was too severe because United States Sentencing Guideline § 2L1.2 was
not empirically based and gave excessive weight to his prior robbery conviction.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50422     Document: 00511027431 Page: 2      Date Filed: 02/12/2010
                                  No. 09-50422

He contends that the guidelines range overstated the seriousness of his
nonviolent reentry offense and failed to account for his motive for reentering the
United States.      Galarza also argues that this court should not afford a
presumption of reasonableness to a sentence imposed under § 2L1.2; however,
he recognizes that United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009), forecloses this argument.
      This court reviews the “substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”       United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      This court has consistently rejected Galarza’s “empirical data” argument.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, 130 S.
Ct. 378 (2009). The district court considered Galarza’s request for a downward
variance, and it 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. Galarza’s assertions regarding § 2L1.2’s lack of
an empirical basis, the weight given his prior robbery conviction, the nonviolent
nature of his offense, 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.), cert. denied, 129 S. Ct. 624
(2008). As Galarza 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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