     Case: 10-50380 Document: 00511379724 Page: 1 Date Filed: 02/11/2011




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

                                                 FILED
                                                                          February 11, 2011
                                     No. 10-50380
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JUAN MEDINA-ESQUEDA, also known as Oscar De La Cruz-Esqueda,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1243-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Juan Medina-Esqueda appeals his within-Guidelines sentence of 60-
months’ imprisonment, following his guilty-plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326. Medina contends his
sentence: should not be accorded the presumption of reasonableness applied to
a within-Guidelines sentence given that it was enhanced by a Guideline lacking
empirical support; and is substantively unreasonable because it is greater than
necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a)(2).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50380

      Medina urges not applying the presumption of reasonableness on the claim
that Guideline § 2L1.2, upon which his 16-level enhancement was based, lacks
empirical support. He concedes this assertion is foreclosed by our precedent, but
raises it to preserve it for possible further review.        See United States v.
Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
      Regarding his substantive-unreasonableness claim, Medina contends his
sentence is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a) because Guideline § 2L1.2, unsupported by empirical data, double-
counts his prior conviction by allowing its use both to increase his offense level
and calculate his criminal-history score. He further maintains the Guidelines
range: overstated the seriousness of his offense because his conduct was not
violent; and did not properly account for his personal history and characteristics,
including his motive for reentry.
      Medina’s substantive-unreasonableness claim is reviewed for abuse of
discretion. Mondragon-Santiago, 564 F.3d at 360. Although post-Booker, the
advisory sentencing Guidelines are advisory only, the district court must still
properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 50-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
When, as here, the district court imposes a sentence within a properly-calculated
Guidelines range, we accord great deference to the sentence and apply a
rebuttable presumption of reasonableness. Gall, 552 U.S. at 51-52; United
States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      Although he made related objections in district court, Medina did not
object to the reasonableness of his sentence; therefore, that claim would likely
be reviewed only for plain error. See United States v. Peltier, 505 F.3d 389, 391-

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                                   No. 10-50380

92 (5th Cir. 2007). Deciding whether to apply plain-error review is unnecessary,
however, because Medina has failed to rebut the presumption of reasonableness
under the more lenient abuse-of-discretion standard.
      Contrary to Medina’s assertion, the court adequately weighed the § 3553
sentencing factors. See, e.g., United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006). It considered Medina’s criminal history category of IV, and
noted that six of his prior convictions were not considered in that category.
Although Medina contends the court erred in using his 15-year old burglary-of-a-
dwelling conviction in its sentence enhancement, Guideline § 2L1.2 does not
place age limitations on prior convictions. U.S.S.G. § 2L1.2(b)(1)(A). The court
also considered Medina’s motive for reentry, and his not having understood the
punishment for such offense, but determined that a 60-month sentence was
appropriate.
      Finally, Medina’s contention that his criminal record is improperly double-
counted under Guideline § 2L1.2, without any empirical basis, is also foreclosed
by our precedent. E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009) (recognizing discretion afforded district courts
in applying Guidelines to particular facts); see also Mondragon-Santiago, 564
F.3d at 366-67.
      AFFIRMED.




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