     Case: 13-50364      Document: 00512508942         Page: 1    Date Filed: 01/22/2014




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

                                                                                   FILED
                                    No. 13-50364                            January 22, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDWIN RICARDO PERDOMO NOVA, also known as Roberto Fernandez, also
known as David Avila Sanchez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2518-1


Before DAVIS, SOUTHWICK, AND HIGGINSON, Circuit Judges.
PER CURIAM: *
       Edwin Ricardo Perdomo Nova pleaded guilty to illegal reentry following
a previous deportation and to improperly using the passport of another person
to do so. Perdomo Nova argues that his 26-month within-guidelines sentence
is unreasonable in that it was greater than necessary to accomplish the goals
of sentencing set forth in 18 U.S.C. § 3553(a). Relying on Kimbrough v. United



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50364

States, 552 U.S. 85, 109 (2007), Perdomo Nova contends that U.S.S.G. § 2L1.1
is flawed and not based on “‘empirical data and national experience.’” As such,
he argues that his within-guidelines sentence should not be afforded the
presumption of reasonableness. He also contends that the flawed guideline
results in an advisory sentencing range that overstates the seriousness of his
offense.   Perdomo Nova also argues that the guidelines do not take into
consideration his history and personal characteristics, including his benign
motive for returning to this country.
      Perdomo Nova recognizes that United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009), and United States v. Campos-Maldonado, 531 F.3d 337,
339 (5th Cir. 2008), foreclose his argument that because the guideline is not
empirically grounded, the presumption of reasonableness should not be applied
to a sentence calculated under § 2L1.1. He further recognizes that because he
did not object to the reasonableness of his sentence before the district court,
this court reviews his argument under the plain error standard. See Puckett
v. United States, 556 U.S. 129, 135 (2009); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).
      The district court considered Perdomo Nova’s arguments in mitigation
of his sentence and expressed compassion and respect for Perdomo Nova’s
motive for returning to this country. It nevertheless deemed the 26-month
within-guidelines sentence “appropriate to comply with the goals of the
sentencing statute.” Perdomo Nova does not offer any specific argument that
the district court considered any irrelevant or improper factors or that it did
not account for a factor that should receive significant weight. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Given the deference owed to
the district court’s sentence determination, see Gall v. United States, 552 U.S.
38, 51-52 (2007), Perdomo Nova’s conclusional assertions that the district court



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                                  No. 13-50364

erred in balancing the § 3553(a) sentencing factors and that his sentence is
unreasonable in light of those factors is insufficient to establish plain error and
to rebut the presumption that the sentence is reasonable. See United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); Cooks, 589 F.3d at 186. The district
court’s judgment is AFFIRMED.




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