IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 09-50193
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ESTEBAN BYGOYTIA-ZUNIGA, also known as Jorge Martinez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2854-1
Before JOLLY, DeMOSS and PRADO, Circuit Judges.
PER CURIAM:*
Esteban Bygoytia-Zuniga (Bygoytia) appeals his 18-month sentence
imposed following his guilty plea conviction for being found illegally in the
United States following deportation. Bygoytia argues that his sentence is
unreasonable, although within the advisory guidelines range, because the
Guidelines overstated the seriousness of his offense and failed to take into
*
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should not be published and is not precedent except under the limited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. 09-50193
account the mitigating nature of his cultural assimilation and his motive for
returning to the United States.
We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007).
Bygoytia presented his arguments at length in his written objections and
personally and through counsel at his sentencing hearing. The district court
recognized the hardship of Bygoytia being separated from his family if they
remained in the United States but pointed out that Bygoytia had lost his legal
status in 1987 because he had committed a crime and that he has continued to
enter this country illegally since that time. The district court’s comments reflect
a familiarity with Bygoytia’s personal history and the nature of his prior
offenses. Because the district court clearly considered Bygoytia’s argument
regarding cultural assimilation, its rejection of the variance on that basis does
not render the sentence unreasonable. See United States v. Gomez-Herrera, 523
F.3d 554, 565 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Prior to imposing the
guidelines sentence, the district court stated that it had considered the
information provided, the circumstances of the case, and the goals of the
Sentencing Guidelines and § 3553(a).
Because it is within the guidelines range, Bygoytia’s sentence is entitled
to a presumption of reasonableness, see United States v. Campos-Maldonado,
531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008), and Bygoytia has
shown no good reason for us to disturb it. See Gall, 128 S. Ct. at 597.
Bygoytia acknowledges that the two additional arguments that he raises
are foreclosed. He argues that the appellate presumption of reasonableness
should not apply because U.S.S.G. § 2L1.2 lacked an empirical foundation and
that the guidelines range reflected an unwarranted disparity between
defendants who can participate in a fast-track program and defendants who
cannot. As Bygoytia concedes, we have previously rejected such arguments.
United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied,
2
No. 09-50193
___ S. Ct. ___, 2009 WL 1849974 (U.S. Oct. 05, 2009) (No. 08-11099); Gomez-
Herrera, 523 F.3d at 563.
AFFIRMED.
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