     Case: 10-50272 Document: 00511288672 Page: 1 Date Filed: 11/09/2010




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

                                                 FILED
                                                                          November 9, 2010
                                     No. 10-50272
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE MELVIN ABREGO-MEJIA,

                                                   Defendant - Appellant


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


Before D EMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Melvin Abrego-Mejia (Abrego) pleaded guilty without a written plea
agreement to illegal reentry after removal and was sentenced within the
advisory guidelines range to 46 months of imprisonment and three years of
supervised release.
       Abrego argues that an appellate presumption of reasonableness should not
apply to his sentence because the illegal reentry Sentencing Guideline § 2L1.2,
is not supported by empirical data. He correctly acknowledges, however, that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50272 Document: 00511288672 Page: 2 Date Filed: 11/09/2010

                                  No. 10-50272

this argument is foreclosed by this court’s precedent, and he asserts that he is
raising it only to preserve it for future review. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
       Abrego also argues that the district court imposed a sentence greater than
necessary to meet the goals of sentencing in 18 U.S.C. § 3553(a) and that his
sentence is, therefore, substantively unreasonable. He contends that (1) the
Sentencing Guidelines’ double-counting of his prior aggravated assault
conviction in both his criminal history and his offense level calculations resulted
in a guidelines range that was greater than necessary to deter future crime and
protect the public; and (2) the Sentencing Guidelines did not take into account
the fact that he was a hard worker who was working to earn money to send back
to his impoverished relatives in El Salvador, who had been displaced by an
earthquake. Because Abrego did not raise this argument before the district
court, we review for plain error. See United States v. Peltier, 505 F.3d 389, 392
(5th Cir. 2007).
       The record demonstrates that the district court considered the § 3553(a)
factors and Abrego’s arguments at sentencing before determining that Abrego’s
within-guidelines sentence was appropriate. Abrego has failed to rebut the
presumption of reasonableness that this court applies to his within-guidelines
sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008). Accordingly, Abrego has not shown that the district court committed
plain error by imposing an unreasonable sentence. See Peltier, 505 F.3d at 391-
92.
       AFFIRMED.




                                        2
