Case: 13-20207 Document: 00512594586 Page: 1 Date Filed: 04/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20207 April 14, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMILIO DE LA GARZA-MONTEMAYOR, also known as Emilio Del La Garza-
Montemayor, also known as Emilio DeLaGarza, also known as Emilio
Montemayor DeLaGarza, also known as Emilio DeLaGarza-Montemayor, also
known as Emmillio DeLaGarza, also known as Emmillo De La Garza,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-418-1
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Emilio De La Garza-Montemayor
has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). De La Garza-Montemayor has filed a response. We have
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20207 Document: 00512594586 Page: 2 Date Filed: 04/14/2014
No. 13-20207
reviewed counsel’s brief and the relevant portions of the record reflected
therein, as well as De La Garza-Montemayor’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. In his response, De La Garza-Montemayor contends, inter
alia, that his below-range sentence should not be entitled to a presumption of
reasonableness because his guideline sentencing range was calculated under
U.S.S.G. § 2L1.2, which he argues is not based on empirical evidence. That
contention is foreclosed, see United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009), but by raising the argument De La Garza-Montemayor has
preserved it for further review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.
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