USA v. Manuel Galdamez-Escobar, No. 13-50227 (5th Cir. 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 8, 2014.
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Case: 13-50227 Document: 00512492853 Page: 1 Date Filed: 01/08/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-50227 Summary Calendar FILED January 8, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. MANUEL ANTONIO GALDAMEZ-ESCOBAR, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:12-CR-931-1 Before KING, BARKSDALE, and HIGGINSON, Circuit Judges. PER CURIAM: * Manuel Antonio Galdamez-Escobar appeals his 41-month sentence, imposed following his guilty-plea conviction for being found unlawfully present in the United States following deportation. He contends the sentence was unreasonable because it was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-50227 Document: 00512492853 Page: 2 Date Filed: 01/08/2014 No. 13-50227 Although post-Booker, the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Galdamez does not claim procedural error. Instead, he maintains only that the challenged sentence was substantively unreasonable. 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. 2008). Galdamez contends, however, the presumption of reasonableness does not apply to his within-Guideline sentence because the illegal reentry Guideline, § 2L1.2, is not supported by empirical data. Galdamez concedes this argument is foreclosed by United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). He raises the issue only to preserve it for possible further review. Asserting his sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a), Galdamez contends the district court failed to consider that the applicable Guideline does not take into account his benign motive for returning to the United States and the overstatement of his criminal history. Galdamez contentions are insufficient to rebut the presumption of reasonableness. E.g., United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). AFFIRMED. 2
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