IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50865

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO OLMEDO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-3386-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Eduardo Olmedo appeals the sentence imposed

following his guilty plea conviction for being unlawfully present in the United

States following removal. The district court sentenced Olmedo to 70 months

imprisonment and three years supervised release, a sentence at the low end of

the guidelines range.

Olmedo contends that the sentence was unreasonable because it was

greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He maintains

United States Court of Appeals

Fifth Circuit

F I L E D

August 25, 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.

Case: 09-50865 Document: 00511214028 Page: 1 Date Filed: 08/25/2010
No. 09-50865

that the Guideline on which his sentence was based, U.S.S.G. § 2L1.2, was not

based on empirical data, making the guidelines range excessive even in a normal

case. He claims that the guidelines sentence range was excessive because his

prior federal drug conviction both increased his offense level by 16 and resulted

in six criminal history points. Olmedo also asserts that the sentence was too

severe because his offense amounted to an international trespassing offense. He

argues that the sentence was excessive because he had lived in the United States

since he was five years old and because the district court based the sentence on

its view that it had imposed a lenient sentence for Olmedo’s prior drug

conviction.

The district court considered and rejected Olmedo’s arguments for a

sentence below guidelines range. With explicit reference to the § 3553(a) factors

of deterrence and promoting the respect of law, it determined that a sentence

within the guidelines range was appropriate. Although § 2L1.2 may not be

based on empirical data, the presumption of reasonableness still applies to

sentences within a guidelines range properly calculated under § 2L1.2. See

United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.

denied, 130 S. Ct. 192 (2009). Both the international trespass and the double

counting of prior convictions contentions that Olmedo raises have been raised

previously in this court without success. See United States v. Aguirre-Villa, 460

F.3d 681, 683 (5th Cir. 2006); United States v. Duarte, 569 F.3d 528, 529-31 (5th

Cir.), cert. denied, 130 S. Ct. 378 (2009). Even though the district court

considered that it had given Olmedo a lenient sentence for his prior drug

conviction, Olmedo has not shown that this was improper. See United States v.

Lee, 358 F.3d 315, 328-29 (5th Cir. 2004). As Olmedo was sentenced within the

guidelines range, the sentence is entitled to a presumption of reasonableness,

and Olmedo has not shown sufficient reason to overcome that presumption. See

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

AFFIRMED.

2

Case: 09-50865 Document: 00511214028 Page: 2 Date Filed: 08/25/2010