* Pursuant to Fifth Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Fifth Circuit Rule 47.5.4.

REVISED JULY 16, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50680

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JAIME PENA-GOMEZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-3210-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Jamie Pena-Gomez appeals his sentence after his guilty plea conviction for

illegal reentry following deportation. Because Pena previously had been

convicted of importation of a controlled substance, his offense level was adjusted

upward by sixteen levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). The district

court denied Pena’s request for a downward variance for the guidelines range

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2009

Charles R. Fulbruge III

Clerk
No. 08-50680

2

and sentenced him to forty-six months of imprisonment and three years of

supervised release.

Pena contends that his sentence was greater than necessary to accomplish

the sentencing goals of 18 U.S.C. § 3553(a)(2). Pena concedes that this court

ordinarily applies a presumption of reasonableness to within-guidelines

sentences. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th

Cir.), cert. denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523

F.3d 554, 565–66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Citing

Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007), Pena contends that

the presumption should not apply in this case because § 2L1.2 is not empirically

supported. Because Pena did not raise his current empirical argument in the

district court, it is reviewed for plain error only. See United States v. GarzaLopez, 410 F.3d 268, 272 (5th Cir. 2005). 

Pena’s reliance on Kimbrough is misplaced as the Court did not address

the applicability of the presumption of reasonableness. The district court

considered Pena’s requestfor leniency in light of his personal circumstances, but

ultimately determined that a sentence within the guidelines range was

appropriate. Pena’s within-guidelines sentence is presumptively reasonable, and

Pena has not shown that his sentence is unreasonable. See Campos-Maldonado,

531 F.3d at 338; Gomez-Herrera, 523 F.3d at 565–66.

Pena argues that the district court abused its discretion by imposing a

three-year term of supervised release. He contends that the court failed to make

an individualized assessment of the propriety of supervised release and simply

imposed it based on its usual practice in illegal reentry cases. Specifically, Pena

avers that the court failed to account for the fact that he will likely be deported

from the United States following completion of his term of imprisonment,

thereby making it impossible to fulfill the rehabilitative or monitoring goals of

supervised release. He contends that the district court’s rejection of his request

for no term of supervised release thus appeared to be aimed at “deterring
No. 08-50680

3

another illegal reentry” or “reserving additional punishment” should he return,

both of which he maintains are impermissible bases for imposing a term of

supervised release.

The district court may impose upon a defendant a term of supervised

release as part of its sentencing decision. See 18 U.S.C. § 3583(a). This court

reviews the portion of a sentencing decision related to an imposed imprisonment

term based upon the Sentencing Guidelines under a deferential abuse of

discretion standard. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764

(5th Cir. 2008).

Pena’s three-year supervised release term was authorized by statute and

was within the applicable guideline ranges. See §§ 3583(b)(2), 3559(a)(3); 8

U.S.C. § 1326(b)(2); U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2). Although Pena is correct

that a district court, in fashioning a sentence, is to treat “every convicted person

as an individual and every case as [] unique,” “[t]he uniqueness of the individual

case, however, does not change the deferential abuse-of-discretion standard of

review that applies to all sentencing decisions.” Gall v. United States, 128 S. Ct.

586, 598 (2007) (citation and quotation marks omitted); see also United States

v. Rodriguez-Rodriguez, 530 F.3d 381, 384–85 (5th Cir. 2008). Because the

district court’s supervised release term was within both the statutory and

applicable guideline ranges, it is presumptively reasonable, and this court “will

infer that the judge has considered all the factors for a fair sentence set forth in

the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005); see

also Rita v. United States, 127 S. Ct. 2456, 2463–65 (2007). The judgment of the

district court is AFFIRMED.