Opinion
No. 09-50874 Conference Calendar.
October 26, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Philip J. Lynch, Assistant Federal Public Defender, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:09-CR-1679-1.
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
Ruben Valdez-Ortiz (Valdez) pleaded guilty to attempted illegal reentry and personating another when applying for admission to the United States. See 8 U.S.C. § 1326 and 18 U.S.C. § 1546. He now appeals the reasonableness of his within-guidelines sentence. Because Valdez did not object to the reasonableness of the sentence in the district court, review is limited to plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
According to Valdez, his sentence is unreasonable because the 16-level enhancement set forth in U.S.S.G. § 2L1.2(b) is not supported by empirical data. This argument is foreclosed, as is his argument that the presumption of reasonableness should not be applied to his within-guidelines sentence. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009).
Valdez's assertions regarding his personal history and circumstances 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). The record reflects that the district court considered the sentencing factors in 18 U.S.C. § 3553(a). Valdez has not demonstrated that the district court's imposition of a sentence within the advisory guidelines range was error, plain or otherwise.
AFFIRMED.