IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 08-51244
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FAUSTINO SANCHEZ-LUGO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:07-CR-1097-ALL
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Faustino Sanchez-Lugo appeals the 84-month term of imprisonment
imposed for his guilty plea conviction for illegal reentry into the United States
after having previously been removed. He argues that his sentence, which fell
within his advisory guidelines range, is unreasonable because it was greater
than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).
Sanchez-Lugo contends that a shorter sentence was appropriate in his case
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-51244
because the illegal-reentry Guideline gives undue weight to a defendant’s prior
record, his offense was not violent, and he reentered the United States only to
visit his family members.
Relying on Kimbrough v. United States, 128 S. Ct. 558, 575 (2007), and
Rita v. United States, 551 U.S. 338, 347-48 (2007), Sanchez-Lugo contends that
the appellate presumption of reasonableness accorded sentences imposed within
a defendant’s properly calculated advisory sentencing guidelines range should
not apply to sentences that were calculated under Guidelines not derived from
empirical data and national experience. However, this court has rejected that
argument. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), cert.
denied, 2009 WL 3162196 (Oct. 5, 2009) (No. 09-6195); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 2009
WL 1849974 (Oct. 5, 2009) (No. 08-11099). The appellate presumption of
reasonableness is applicable in this case. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
In determining Sanchez-Lugo’s sentence, the district court judge
considered the advisory sentencing guidelines range, the information in
Sanchez-Lugo’s presentence report, and the § 3553(a) factors. The district court
judge considered the arguments presented at sentencing and determined that
a guidelines sentence would be appropriate. Sanchez-Lugo’s arguments do not
establish that the district court plainly erred or abused its discretion in imposing
that sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007). Sanchez-
Lugo has not rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence. See Alonzo, 435 F.3d at 554.
The judgment of the district court is AFFIRMED.
2