IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 following his guilty plea conviction for illegal reentry following

deportation in violation of 8 U.S.C. § 1326. Zubia-Martinez contends that the

sentence is substantively unreasonable because it 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 22-year-old conviction and failed to account for his personal history and

United States Court of Appeals

Fifth Circuit

F I L E D

August 2, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-51159

characteristics, specifically, the influence of alcohol on many of his prior offenses

and his serious health issues. 

Although Zubia-Martinez acknowledges that we apply plain error review

when a defendant fails to object to the reasonableness of the sentence imposed

in the district court, he also seeks to preserve the issue for further review. 

Because Zubia-Martinez did not object to the substantive reasonableness of his

sentence in the district court, plain error review applies. See United 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 Guidelines and the . . . § 3553(a)

factors, we will give great deference to that sentence and will infer that the judge

has considered all the factors for a fair sentence set forth in the Guidelines in

light of the sentencing considerations set out in § 3553(a).” United States v.

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal quotation marks

and citation omitted). “A discretionary sentence imposed within a properly

calculated guidelines range is presumptively reasonable.” Id.

Zubia-Martinez contends that the presumption of reasonableness should

not apply because U.S.S.G. § 2L1.2 is not empirically based and therefore

produces a sentencing range too high to fulfill § 3553(a)’s goals. He concedes

that his argument is foreclosed by circuit precedent but seeks to preserve the

issue for further review. As Zubia-Martinez concedes, we have consistently

rejected his “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 considered Zubia-Martinez’s request for a downward

variance and 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. Zubia-Martinez’s assertions that the age of his

prior conviction and his medical condition justified a lower sentence are

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No. 12-51159

insufficient to rebut the presumption of reasonableness. See United States v.

Rodriguez, 660 F.3d 231, 233-34 (5th Cir. 2011) (holding that the staleness of a

prior conviction used in the proper calculation of a guidelines range does not

render a sentence substantively unreasonable and does not preclude a 

presumption of reasonableness); United States v. Rodriguez, 523 F.3d 519, 526

(5th Cir. 2008)(determining that a below-guidelines sentence was not warranted

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 within-guidelines sentence is substantively unreasonable, and there

is no reversible plain error. See Campos-Maldonado, 531 F.3d at 339. The

district court’s judgment is AFFIRMED.

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