USA v. Gregorio Zuniga-Holguin, No. 09-50872 (5th Cir. 2010)
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Case: 09-50872 Document: 00511120093 Page: 1 Date Filed: 05/24/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50872 Summary Calendar May 24, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. GREGORIO ZUNIGA-HOLGUIN, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:09-CR-1800-1 Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Gregorio Zuniga-Holguin appeals the 64-month sentence imposed in connection with his guilty-plea conviction for being found in the United States following deportation in violation of 8 U.S.C. § 1326. Zuniga-Holguin argues that his sentence is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he should have been sentenced below the guidelines range. He argues that his personal history and characteristics and his motive for reentering the United States support a sentence below the guidelines range. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50872 Document: 00511120093 Page: 2 No. 09-50872 Date Filed: 05/24/2010 Zuniga-Holguin cites Kimbrough v. United States, 522 U.S. 85 (2007), and argues that this court should not accord the sentence a presumption of reasonableness because the illegal reentry guideline is not supported by empirical data. Zuniga-Holguin acknowledges that this argument is foreclosed by this court s precedent but raises the issue to preserve it for further review. The substantive reasonableness of Zuniga-Holguin s sentence is reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2009). A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). Zuniga-Holguin s argument that this court should not accord his within-guidelines sentence a presumption of reasonableness because the applicable guideline is not supported by empirical data is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Zuniga-Holguin s assertions regarding his personal history and characteristics and his motive for reentering the United States are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Zuniga-Holguin has not demonstrated that the district court s imposition of a sentence at the bottom of the guidelines range was an abuse of discretion. The district court s judgment is AFFIRMED. 2
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