     Case: 14-50948       Document: 00513061422         Page: 1     Date Filed: 06/01/2015




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

                                     No. 14-50948                                    FILED
                                   Summary Calendar                               June 1, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JAVIER LEOPOLDO MARTINEZ-CRUZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-524


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Javier Leopoldo Martinez-Cruz pleaded guilty to a single count of illegal
reentry after removal, in violation of 8 U.S.C. § 1326.                The district court
imposed a sentence of 66 months’ imprisonment, which was within the
applicable advisory sentencing range under the Sentencing Guidelines.
Martinez challenges the substantive reasonableness of his sentence, asserting
it is greater than necessary to achieve the sentencing goals of 18 U.S.C.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50948

§ 3553(a). (Martinez twice objected in district court to the court’s application of
the 16-level enhancement for being previously deported following a conviction
for a crime of violence, U.S.S.G. § 2L1.2(b)(1)(A)(ii); but, he does not raise this
issue here. He has, therefore, abandoned it.)
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, 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).
Martinez does not claim procedural error.
      A within-Guidelines-sentencing range sentence is entitled to a
presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      As Martinez concedes, his claim that the presumption should not apply
because Guideline § 2L1.2 is not empirically based is foreclosed. E.g., United
States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). (He
raises the issue only to preserve it for possible review in the future.) Likewise,
our court has rejected similar contentions to those made by Martinez that the
Guideline provisions are not based on “empirical data” because they “double
count” prior offenses, and because illegal reentry offenses are at most only



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                                 No. 14-50948

nonviolent international trespasses. See, e.g., United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); United States v. Juarez-Duarte, 513 F.3d 204,
212 (5th Cir. 2008).
      The court heard and considered Martinez’ allocution, which included his
new understanding of the penalties for illegal reentry, his long-term residence
in the United States, and his desire to see his children. During sentencing, the
court noted Martinez’ criminal history, the violent nature of some of his
convictions (as referenced supra), and his disregard of warnings regarding
reentry. Martinez’ claims amount to a disagreement over the court’s weighing
of the § 3553(a) factors and are insufficient to rebut the presumption of
reasonableness that attaches to his sentence. E.g., Cooks, 589 F.3d at 186.
      AFFIRMED.




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