IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50916

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HERMELINDO ANGELES-TREJO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-131-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Hermelindo Angeles-Trejo challenges his within-guidelines sentence of 37

months’ imprisonment, imposed following his guilty-plea conviction for illegal

reentry, in violation of 8 U.S.C. § 1326. He claims: his aggravated assault

conviction was overemphasized by Sentencing Guideline § 2L1.2 (unlawfully

entering or remaining with the United States), and, therefore, his sentence is

greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a); and,

United States Court of Appeals

Fifth Circuit

F I L E D

August 6, 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. 09-50916

he should have been sentenced below the Guidelines range because of his benign

motives for reentry.

Although post-Booker, the Guidelines are advisory only, and an ultimate

sentence is reviewed for reasonableness under an abuse-of-discretion standard,

the district court must still properly calculate the guideline-sentencing range for

use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 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).

Angeles challenges the substantive reasonableness of his sentence;

therefore, as noted above, our review is for an abuse of discretion. Because

Angeles’ sentence was within the properly calculated Guidelines range, it is

presumed to be reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006).

Angeles’ contention that § 2L1.2’s emphasis on defendant’s criminal

history renders a sentence unreasonable is unconvincing. See United States v.

Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). His

personal history and characteristics, including his motives for reentering the

United States, are also insufficient to rebut the presumption of reasonableness.

See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

Angeles has not demonstrated that the district court’s imposition of a sentence

at the bottom of the Guidelines range was an abuse of discretion.

Citing Kimbrough v. United States, 552 U.S. 85 (2007), Angeles also

contends that his sentence should not be accorded a presumption of

reasonableness because the illegal-reentry Guideline, § 2L1.2, is not supported

by empirical data. He acknowledges, however, that this contention is foreclosed

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by our court’s precedent and raises it only to preserve it for further review. See

Duarte, 569 F.3d at 529-31.

AFFIRMED.

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