### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-51159 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. HECTOR MANUEL ZUBIA-MARTINEZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-1930-1

Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Hector Manuel Zubia-Martinez appeals the 46-month within-guidelines sentence imposed f

ollowing his guilty plea conviction for illegal reentry f o ll o w ing deportation in violatio n o f 8 U

. S.C. § 1326. Zubia-Martinez contends that the sentence is substantively unreasonable because i t was greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a). He argues that the guidelines range was too severe because it overstated the seriousness of his 2 2-year-old conv i c t i o n a nd failed to account for his personal history and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 2, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-51159 Document: 00512329808 Page: 1 Date Filed: 08/02/2013No. 12-51159

characteristics, specifically, the influence of alcohol on many of his prior offenses and his serious health issues. Although Z ubia-Martinez acknowledges that we apply plain error review when a defendant fails to object t o the reasonableness of the sentence imposed in the district court, he also seeks to preserve the issue for f urther review. Because Zubia-Martinez did n ot object to the substantive reasonableness of his sentence in the district c ourt, plain error review appl i e s . Se e U nited States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2007). “When the district court imposes a sentence within a properly calculated guidelines range and gives proper weight to the G uidelines and the

. . . § 3553(a) factors, we will give gr eat d eference to t hat sentence and will infer that the judge has considered all the factors for a fair sentence s et forth in the Guidelines in light of th e s e n t encing considerations set out in § 3 553(a).” United States v. C ampos-Maldonado , 5 31 F.3d 337, 338 (5th C ir. 2008) (internal qu o t ati o n m ark s and citation omitted). “A discretionary sentence i m posed within a p roperly calculated guidelines range is presumptively reasonable.” I d. Zubia-Martinez c ontends that the presumption of r e asonableness should not a p p l y b ecause U .S.S.G. § 2L1.2 is not e mpirically based and therefore produces a sentencing range too high to fulfill § 3553(a)’s goals. H e c o n c e d es that his a r g u m e n t is foreclosed by circuit precedent but seeks to preserve the issue f or fur t h e r r e view. As Zubia-Martinez c oncedes, we have c onsistently rejecte d h is “empirical data” argument. See United States v . Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009); United States v . Mondragon-Santiago , 564 F.3d 357, 366 (5th Cir. 2009). The district court c onsidered Zubia-Martinez’s request f or a d o wnward variance a nd ultimately determined that a sen t e n c e a t the bottom of the applicable guidelines range was appropriate based on the c ircumstances of the

case and the § 3553(a) factors. Zubia-Martinez’s assertions that the age of his prior conviction an d h i s medical condition justified a lower sentence are 2 Case: 12-51159 Document: 00512329808 Page: 2 Date Filed: 08/02/2013No. 12-51159

insufficient t o r ebut the presumption of reasonableness. See U n ited S t a t e s v. Rodriguez , 660 F.3d 231, 2 33-34 (5th C ir. 2011) (holding that the staleness of a prior conviction used in the proper calculation of a guidelines range d o e s n ot render a sentence substantively unreasonable a n d does not preclude a presumption of reasonableness); United States v . Rodriguez , 523 F

. 3d 519, 526 ( 5 th C ir . 2 0 0 8) ( d e t e rmining that a b elow-guidelines sentence was not w arranted for a defendant who suffered from sickle cell anemia, Hepatitis C, blackouts, and
upper respiratory illness). Therefore, Zubia-Martinez has failed to show that his 46-month w ithin-guidelines sentence is substantively unreasonable, and there is no reversible plain e r r o r . See Campos-Maldonado , 531 F.3d at 3 39. The district court’s judgment is AFFIRMED.

3 Case: 12-51159 Document: 00512329808 Page: 3 Date Filed: 08/02/2013