Case: 11-10144 Document: 00511639598 Page: 1 Date Filed: 10/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2011
No. 11-10144
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EFREN ZUNIGA-MENDOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:10-CR-52-1
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Efren Zuniga-Mendoza (Zuniga) appeals from the 87-month within-
guidelines sentence imposed by the district court following his conviction of
illegal reentry.
In reviewing the sentence imposed for reasonableness, this court must first
determine whether the district court committed any procedural errors, including,
inter alia, “failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007). If the district court’s decision is procedurally
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10144 Document: 00511639598 Page: 2 Date Filed: 10/20/2011
No. 11-10144
sound, this court will “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id. A sentence that falls
within the applicable guidelines range “is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States,
551 U.S. 338, 347 (2007) (upholding the application of the presumption of
reasonableness to sentences within a properly calculated guidelines range).
Because Zuniga did not sufficiently raise below his argument that the
district court failed to explain adequately the sentence imposed, we review for
the issue for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). Zuniga properly concedes that under plain error review, his
procedural reasonableness argument is foreclosed. See United States v.
Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).
Further, we reject Zuniga’s argument that Pepper v. United States, 131
S. Ct. 1229, 1246-49 (2011), contravenes this court’s holding in Mondragon-
Santiago that a sentence that falls within a guidelines range calculated
pursuant to U.S.S.G. § 2L1.2 is entitled to a presumption of reasonableness. See
Mondragon-Santiago, 564 F.3d at 366-67. Zuniga’s policy-based arguments
attacking the underpinnings of § 2L1.2 essentially invite this court to engage in
impermissible “substantive second-guessing of the sentencing court.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 767 (5th Cir. 2008). He fails to
overcome the presumption of reasonableness afforded his sentence. See Alonzo,
435 F.3d at 554.
AFFIRMED.
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