### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50753 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. SALVADOR GARCIA-RAMIREZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10-CR-1029-1

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Salvador Garci a -Ramirez (Garcia) appeals the 54- month within-guidelines sentence imposed following his guilty-plea conviction f or illegal reentry into the United States following deportation. G a r c i a challenges the substantive reasonableness of his sentence, claiming that illegal reentry guid elines lack an empirical basis and that sentences based on those guidelines should not be afforded a presumption of rea sonableness. He also contends that the convi c t i o n used to enhance his sentence was more than ten U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May17 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50753 Document: 00511859291 Page: 1 Date Filed: 05/17/2012No. 11-50753

years o l d a n d th a t he would not have received as great an increase in offense level based on the 2011 amendments to U.S.S.G. § 2L1.2(b)(1)(A). Garcia asserts that the sentence imposed by the district court did not accurately reflect his personal history and char a cteristics, including the facts that (1) he had been living in th e U n it e d States since 1992, (2) he has two minor children who are United States citizens, (3) the woman with whom he has a relationship has been diagnosed wi th c a n c e r , and (4) his motive for returning to the United States, which w a s b a s e d on his ties to the country, mitigates the seriousness of his offense. Garcia concedes that plain error review applies because he did n o t challenge the reasonableness of his sentence before the di s t ri c t court. See United States v. Peltier , 505 F.3d 389, 391-92 (5th C i r . 2 0 0 7)

. He raises this issue only to preserve it for possible review by the Supreme Court. He also seeks to preserve for review his contention that the appellate p r esumption of reasonableness should not apply to sentences imp o s e d u n der U.S.S.G. § 2L1.2 because that provision lacks an empirical basis. We have previ o u s ly rejected this contention. See Unit e d S t a t e s v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009).The district court did not e rr i n i mposing a sentence based on the guideli n e s in effect at the time of Garcia’s sentencing. See United States v. Rodarte-Vasquez , 488 F.3d 316, 322 (5th Cir. 2007). With respect to the age of the prior conviction that was used to enhance Garcia ’ s offense level, “the staleness of a prior conviction used in the proper ca l c u l ation of a guidelinesran ge s entence does not render a sentence substantively unreasonable” and does not “destroy the presumption of reasonableness that att ach e s to s uch sentences.” Uni t e d S t a t es v. Rodriguez , 660 F.3d 231, 234 (5th Cir. 2011). Neither does Garcia’s contention regarding his cultural ties and his benign motive for reentry rebut that presumption. See United States v. Gomez-Herrera , 523 F.3d 554, 565- 66 (5th Cir. 2008).
2 Case: 11-50753 Document: 00511859291 Page: 2 Date Filed: 05/17/2012No. 11-50753

The record establishes th a t th e district court listened to and rejected Garcia’s arguments for a lower sentence and that the court con s i d e r e d the 18 U.S.C. § 3553(a) factors, including Garcia’s personal history and characteristics, prior to imposing a sentence within the Guidelines. Garcia neither has rebutted the presumption of reasonableness of his within-guidelines sentence nor shown that the district court plainly erred by imposing a 54-month sentence. See Puckett v. United States , 556 U.S. 129, 135 (2009). AFFIRMED.

3 Case: 11-50753 Document: 00511859291 Page: 3 Date Filed: 05/17/2012