Case: 09-50872 Document: 00511120093 Page: 1 Date Filed: 05/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2010
No. 09-50872
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GREGORIO ZUNIGA-HOLGUIN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-1800-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Gregorio Zuniga-Holguin appeals the 64-month sentence imposed in
connection with his guilty-plea conviction for being found in the United States
following deportation in violation of 8 U.S.C. § 1326. Zuniga-Holguin argues
that his sentence is greater than necessary to meet the sentencing goals of 18
U.S.C. § 3553(a) and that he should have been sentenced below the guidelines
range. He argues that his personal history and characteristics and his motive
for reentering the United States support a sentence below the guidelines range.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50872 Document: 00511120093 Page: 2 Date Filed: 05/24/2010
No. 09-50872
Zuniga-Holguin cites Kimbrough v. United States, 522 U.S. 85 (2007), and
argues that this court should not accord the sentence a presumption of
reasonableness because the illegal reentry guideline is not supported by
empirical data. Zuniga-Holguin acknowledges that this argument is foreclosed
by this court’s precedent but raises the issue to preserve it for further review.
The substantive reasonableness of Zuniga-Holguin’s sentence is reviewed
for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2009). “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
Zuniga-Holguin’s argument that this court should not accord his
within-guidelines sentence a presumption of reasonableness because the
applicable guideline is not supported by empirical data is foreclosed. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009).
Zuniga-Holguin’s assertions regarding his personal history and
characteristics and his motive for reentering the United States are insufficient
to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Zuniga-Holguin has not
demonstrated that the district court’s imposition of a sentence at the bottom of
the guidelines range was an abuse of discretion.
The district court’s judgment is AFFIRMED.
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