USA v. Jose Zuniga-Mendez, No. 09-50167 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50167 Conference Calendar December 15, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE LUIS ZUNIGA-MENDEZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2131-1 Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* Jose Luis Zuniga-Mendez appeals the 46-month sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that the sentence was greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a) and was therefore substantively unreasonable. Specifically, Zuniga-Mendez argues that the Guidelines overstated the seriousness of his non-violent illegal reentry * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50167 offense and failed to account for his benign motives for returning to the United States. This court reviews the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). 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-Mendez contends that the presumption of reasonableness should not apply to sentences calculated under U.S.S.G. § 2L1.2 because that provision lacks an empirical basis and double counts a defendant s criminal history. As he acknowledges, his argument is foreclosed by circuit precedent. See United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009); United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). The district court considered Zuniga-Mendez s request for a downward variance, and it ultimately determined that a sentence at the bottom of the applicable guidelines range was appropriate based on the circumstances of the case and the § 3553(a) factors. Zuniga-Mendez s assertions that the non-violent nature of his offense and his motive for reentering the United States justified a lower sentence are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). As Zuniga-Mendez 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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