Case: 11-51129 Document: 00511990054 Page: 1 Date Filed: 09/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2012
No. 11-51129
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OMAR ALEJANDRO MARTINEZ-PRADO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-551-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Omar Alejandro Martinez-Prado appeals the
sentence imposed following his guilty plea conviction of illegal reentry into the
United States. His sentence comprises 66 months of imprisonment and three
years of supervised release. He contends that the 66-month prison sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals outlined in 18 U.S.C. § 3553(a). Conceding that he failed to
object in the district court, Martinez-Prado nevertheless asserts that plain error
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51129 Document: 00511990054 Page: 2 Date Filed: 09/17/2012
No. 11-51129
review should not apply because no objection is required to preserve the issue of
the substantive reasonableness of a sentence. He acknowledges, however, that
the issue is foreclosed and that he raises it to preserve the issue for further
review. We have held that a defendant’s failure to object at sentencing to the
reasonableness of his sentence mandates plain error review only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). But, even if we reviewed
for an abuse of discretion, his arguments are unavailing. See Gall v. United
States, 552 U.S. 38, 51 (2007) (reviewing a substantive reasonableness of a
sentence for an abuse of discretion).
As Martinez-Prado’s prison sentence was within the properly calculated
guidelines range of 57 to 71 months of imprisonment, it is entitled to a
presumption of reasonableness. See United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The district court determined that a sentence in the middle of the
guidelines range was appropriate, given Martinez-Prado’s criminal history and
his illegal reentry within one year after deportation. Martinez-Prado has not
shown a clear error of judgment on the district court’s part in balancing the
§ 3553(a) factors. See Cooks, 589 F.3d at 176. He has thus failed to rebut the
presumption of reasonableness that we apply to his within-guidelines sentence.
See Campos-Maldonado, 531 F.3d at 338.
Martinez-Prado nevertheless contends that the presumption of
reasonableness should not be applied to his sentence because the illegal reentry
guideline lacks an empirical basis. This argument too is raised to preserve the
issue for further review because, as he acknowledges, it is foreclosed. See
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No. 11-51129
United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
As Martinez-Prado has not shown any error, much less plain error, in his
sentencing, we AFFIRM the judgment of the district court.
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