United States v. Alberto Martinez-Mendoza

Case: 11-50539 Document: 00511808322 Page: 1 Date Filed: 04/02/2012

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

FILED
April 2, 2012
No. 11-50539
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALBERTO MARTINEZ-MENDOZA, also known as Alberto Martinez,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-315-1

Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
Alberto Martinez-Mendoza pled guilty to one count of unlawful reentry
following deportation in violation of 8 U.S.C. § 1326. The district court
sentenced him to 41 months in prison, at the bottom of the guidelines range of
41 to 51 months. Martinez-Mendoza now appeals, arguing that § 2L1.2 of the
United States Sentencing Guidelines leads to double-counting of criminal
history, is not empirically based, and results in excessive sentences; that his
sentencing range overstates the seriousness of his illegal reentry offense, which

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50539 Document: 00511808322 Page: 2 Date Filed: 04/02/2012

No. 11-50539

he asserts is simply an international trespass; that his criminal history was
overrepresented; and that the district court did not take into account his history
and characteristics, including his youth and clean record.
We review sentences for reasonableness, employing a deferential abuse-of-
discretion standard, and we presume that a sentence within a properly
calculated guidelines range is reasonable. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The
purported double-counting and lack of empirical basis for § 2L1.2 do not
necessarily render a within-guidelines sentence unreasonable. See, e.g., United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). As for his criminal record,
Martinez-Mendoza had a prior conviction for assault and battery with a
dangerous weapon, a conviction for driving under the influence, and prior
unlawful entries that were not prosecuted. With respect to his international
trespass argument, as we have previously noted in rejecting such an argument,
“Congress considers illegal reentry into the United States subsequent to a
conviction for an aggravated felony an extremely serious offense punishable by
up to twenty years in prison.” United States v. Juarez-Duarte, 513 F.3d 204, 212
(5th Cir. 2008).
We discern no improper weighing of any of the factors cited by Martinez-
Mendoza. His mere disagreement with the court’s assessment of the sentencing
factors is insufficient to rebut the presumption that the sentence is reasonable.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
As Martinez-Mendoza properly concedes, his contention that because
§ 2L1.2 is not empirically based, the presumption of reasonableness should not
apply, is foreclosed. See Duarte, 569 F.3d at 529-31; United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
AFFIRMED.

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