IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 18, 2009
No. 09-50534
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AUSENCIO GARCIA-HERRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:08-CR-1140-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Ausencio Garcia-Herrera appeals the 46-month prison sentence imposed
by the district court after he pleaded guilty to illegal reentry following
deportation after conviction of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2). Garcia-Herrera argues that his sentence (1) is greater than
necessary to meet the sentencing goals set forth in 18 U.S.C. § 3553(a) because
it fails to adequately account for his circumstances and motives, and (2) is not
entitled to the appellate presumption of reasonableness because the Guideline
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-50534
upon which his sentence was based, U.S.S.G. § 2L1.2, is not supported by
empirical data or national experience.
Garcia-Herrera acknowledges that his argument regarding the § 2L1.2
Guideline is foreclosed in this circuit, indicating that he raised it merely to
preserve it for future Supreme Court review. Because Garcia-Herrera’s
argument is foreclosed, we need not consider it further. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
Furthermore, Garcia-Herrera has not shown that the 46-month sentence
imposed by the district court was unreasonable. Because Garcia-Herrera
requested a below-guidelines sentence in the district court, our review is for
abuse of discretion. Id. at 360. We review the district court’s interpretation of
the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Because Garcia-Herrera’s 46-month sentence was within the properly
calculated guideline range of 46 to 57 months, it is presumptively reasonable.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008). Garcia-Herrera has not rebutted the
reasonableness presumption. The record reflects that the district court
considered Garcia-Herrera’s arguments, the presentence report, and the
appropriate § 3553(a) factors, including the nature and circumstances of the
offense, the history and characteristics of Garcia-Herrera, and the need for the
sentence imposed to promote respect for the law, deter future criminal conduct,
and protect the public. For example, the district court considered the facts that
Garcia-Herrera illegally returned to the United States during a previously
imposed term of supervised release and that Garcia-Herrera had recently begun
abusing powder cocaine. The district court also considered Garcia-Herrera’s
argument that he needed to support his family, which was also reflected in the
letters submitted on Garcia-Herrera’s behalf by his friends and family. Because
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No. 09-50534
the district court considered the appropriate sentencing factors and articulated
a reasoned basis for imposing the 46-month sentence, Garcia-Herrera has not
established that the district court abused its discretion in the imposition of his
sentence. See Campos-Maldonado, 531 F.3d at 338.
AFFIRMED.
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