IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50985

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ISABEL TENA-MUNOZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-1653-1

Before KING, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:

*

Isabel Tena-Munoz appeals his within-guidelines sentence of 70 months’

imprisonment imposed following his guilty-plea conviction for illegal reentry.

See 8 U.S.C. § 1326. He contends his sentence, which incorporated a 16-level

enhancement under advisory Sentencing Guideline § 2L1.2(b)(1)(A)(iii) based on

his previous deportation after a felony firearms offense, is substantively

unreasonable because it is greater than necessary to achieve the sentencing

goals of 18 U.S.C. § 3553(a). He also contends the ordinary presumption of

United States Court of Appeals

Fifth Circuit

F I L E D

September 7, 2010

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. 09-50985

reasonableness for within-guidelines sentences is inapplicable because Guideline

§ 2L1.2 is not empirically based.

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, 552 U.S. 38, 50-51 (2007). In that respect, 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). Tena does not claim

procedural error. When, as here, the district court imposes a sentence within a

properly-calculated guidelines range, we accord great deference to the sentence

and apply a rebuttable presumption of reasonableness. Gall, 552 U.S. at 51-52;

United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).

In district court, as he concedes, Tena failed to object specifically to the

reasonableness of his sentence; therefore, the standard of review could be plainerror. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Our court

has not yet determined whether a defendant’s failure to object at sentencing to

the reasonableness of his sentence triggers such review. Id. at 391.

Nevertheless, we need not decide that issue because Tena is not entitled to relief

even under the more deferential abuse-of-discretion standard. United States v.

Rodriguez-Orozco, 332 F. App’x 968, 969 (5th Cir.), cert. denied, 130 S. Ct. 477

(2009).

Tena failed to rebut the presumption of reasonableness that applies to his

within-guidelines sentence. The district court heard Tena’s contentions and

rejected the assertion that his criminal history was overstated, noting that

Tena’s criminal history reflected “a solid involvement in drug trafficking”.

Moreover, the district court considered Tena’s prior imprisonment of 60 months

and stated it was an inadequate deterrent. The district court made an

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No. 09-50985

individualized sentencing decision in the light of the sentencing factors set forth

in § 3553(a). See Gall, 552 U.S. at 50. Accordingly, there is no reason to disturb

the district court’s discretionary decision to impose a within-guidelines sentence.

Tena further maintains that the presumption of reasonableness is

inapplicable because advisory Guideline § 2L1.2 (increasing offense level for

unlawfully entering or remaining in the United States following prior

convictions) is not empirically based. Conceding that our court’s precedent

forecloses this contention, he raises it in order to preserve it for possible further

review. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied,

130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-

67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).

AFFIRMED.

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