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

                                                 FILED
                                                                           August 3, 2009
                                     No. 08-51208
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

LUIS FERNANDO ORTIZ-RUIZ, also known as Ramiro Garcia-Salgado,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-2057-ALL


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Luis Fernando Ortiz-Ruiz (Ortiz) appeals the sentence imposed following
his guilty plea conviction to illegal reentry of a previously deported alien. He
argues that the sentence imposed by the district court was unreasonable because
it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He
contends that the advisory guidelines range of 46–57 months was too severe, the
illegal reentry guideline is not empirically based and double counted his criminal
record, and the presumption of reasonableness should not apply. Ortiz argues

       *
         Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                 No. 08-51208

that the Guidelines overstated the sentence necessary given (1) that his
conviction was several years old and (2) that the conviction’s seriousness was
exaggerated. Finally, he contends that the guidelines range also did not account
for his motive for reentering, which was to support his family.
      We reviewed the sentence imposed by the district court for reasonableness
in light of the sentencing factors in 18 U.S.C. § 3553(a). See United States v.
Mares, 402 F.3d 511, 519–20 (5th Cir. 2005). Ortiz’s contention that his within
guidelines sentence is not entitled to a presumption of reasonableness because
the relevant guideline is not supported by empirical evidence is without merit.
See United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009); United States
v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009), petition for cert.
filed (June 24, 2009) (No. 08-11099).       His assertions, that he should have
received a lower sentence based on his motive for returning to the United States
and that his prior conviction overstated the seriousness of his conduct, are
insufficient to overcome this presumption. See United States v. Gomez-Herrera,
523 F.3d 554, 565–66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Because
Ortiz has not shown that the sentence imposed was unreasonable, his sentence
is AFFIRMED.




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