IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50753

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

PEDRO ANTONIO MUNGUIA-LEYVA, also known as Pedro Antonio Mungia

Defendant-Appellant

Consolidated with

No. 08-50756

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

PEDRO ANTONIO MUNGIA, also known as Alacran

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:08-CR-64-ALL

USDC No. 1:99-CR-149-2

United States Court of Appeals

Fifth Circuit

F I L E D

May 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-50753

c/w No. 08-50756

 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should not be published and is not precedent except under the limited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.

2

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Pedro Antonio Munguia-Leyva appeals the sentence imposed for his guilty

plea conviction of violating 8 U.S.C. § 1326(a) and (b) by being found in the

United States without permission, following removal. He argues that his

sentence, which fell within his advisory guidelines range, is unreasonable

because it was greater than necessary to achieve the sentencing goals set forth

in 18 U.S.C. § 3553(a). Munguia-Leyva contends that his sentence should have

been reduced to account for time he served pursuant to his 2000 conviction of

conspiring to possess with the intent to distribute crack cocaine because he

would have served a shorter term of imprisonment if he had been sentenced for

the same offense under the amended crack cocaine guidelines. Munguia-Leyva

also argues, for the first time on appeal, that a shorter sentence was appropriate

because he presented a low risk of recidivism and because his single prior

conviction was used to enhance both his offense level and to increase his

criminal history points.

Relying on Kimbrough v. United States, 128 S. Ct. 558, 575 (2007),

Munguia-Leyva argues that the appellate presumption of reasonableness

accorded sentences imposed within a defendant’s properly calculated advisory

sentencing guidelines range should not apply to sentences that were calculated

under Guidelines not derived from empirical data and national experience.

However, this court has rejected that argument. United States v. MondragonSantiago, __ F.3d. __, No. 07-41099, 2009 WL 782894, at * 8-9 (5th Cir. Mar. 26,

2009); see also United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th

Cir.), cert. denied, 129 S. Ct. 328 (2008) (supporting the continued applicability
No. 08-50753

c/w No. 08-50756

3

of the presumption of reasonableness to sentences based on non-empiricallygrounded Guidelines). The appellate presumption is applicable in this case.

See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 

In determining Munguia-Leyva’s sentence, the district court judge

explicitly stated that he was considering the advisory sentencing guidelines

range, the § 3553(a) factors, the record, and the PSR. The district court judge

considered the arguments presented at sentencing and determined that a

guideline sentence would be reasonable, appropriate, and “tailored to fit the facts

and circumstances of th[e] crime and th[e] defendant.” Munguia-Leyva’s

arguments do not establish that the district court erred or abused its discretion

in imposing that sentence. See Gall v. United States, 128 S. Ct. 586, 597 (2007).

Munguia-Leyva has not rebutted the presumption of reasonableness that

attaches to his within guidelines sentence. See Alonzo, 435 F.3d at 554. 

Munguia-Leyva also appeals the sentence imposed following the revocation

of his supervised release for his 2000 conviction of violating 21 U.S.C. § 846 by

conspiring to possess with the intent to distribute cocaine base. He does not

contend that the district court judge committed any errors during his revocation

proceedings. Thus, any complaints Munguia-Leyva could have raised regarding

the district court’s handling of those proceedings are deemed waived. See FED.

R. APP. P. 28; United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007),

cert. denied, 128 S. Ct. 2924 (2008).

The judgments of the district court should be AFFIRMED.