IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Garcia-Ramirez (Garcia) appeals the 54-

month within-guidelines sentence imposed following his guilty-plea conviction

for illegal reentry into the United States following deportation. Garcia

challenges the substantive reasonableness of his sentence, claiming that illegal

reentry guidelines lack an empirical basis and that sentences based on those

guidelines should not be afforded a presumption of reasonableness. He also

contends that the conviction used to enhance his sentence was more than ten

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2012

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.

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

years old and that 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 characteristics, including the facts that (1) he had been

living in the United 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 with cancer, and (4) his motive for returning to the United States,

which was based on his ties to the country, mitigates the seriousness of his

offense.

Garcia concedes that plain error review applies because he did not

challenge the reasonableness of his sentence before the district court. See

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 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 presumption of

reasonableness should not apply to sentences imposed under U.S.S.G. § 2L1.2

because that provision lacks an empirical basis. We have previously rejected

this contention. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.

2009).

The district court did not err in imposing a sentence based on the

guidelines 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 calculation of a guidelinesrange sentence does not render a sentence substantively unreasonable” and does

not “destroy the presumption of reasonableness that attaches to such sentences.” 

United States 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: 05/17/2012
No. 11-50753

The record establishes that the district court listened to and rejected

Garcia’s arguments for a lower sentence and that the court considered 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