IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50380

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JUAN MEDINA-ESQUEDA, also known as Oscar De La Cruz-Esqueda,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-1243-1

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

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Juan Medina-Esqueda appeals his within-Guidelines sentence of 60-

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

following deportation, in violation of 8 U.S.C. § 1326. Medina contends his

sentence: should not be accorded the presumption of reasonableness applied to

a within-Guidelines sentence given that it was enhanced by a Guideline lacking

empirical support; and is substantively unreasonable because it is greater than

necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a)(2).

United States Court of Appeals

Fifth Circuit

F I L E D

February 11, 2011

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. 10-50380

Medina urges not applying the presumption of reasonableness on the claim

that Guideline § 2L1.2, upon which his 16-level enhancement was based, lacks

empirical support. He concedes this assertion is foreclosed by our precedent, but

raises it to preserve it for possible further review. See United States v.

Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct. 192

(2009).

Regarding his substantive-unreasonableness claim, Medina contends his

sentence is greater than necessary to meet the sentencing goals of 18 U.S.C.

§ 3553(a) because Guideline § 2L1.2, unsupported by empirical data, doublecounts his prior conviction by allowing its use both to increase his offense level

and calculate his criminal-history score. He further maintains the Guidelines

range: overstated the seriousness of his offense because his conduct was not

violent; and did not properly account for his personal history and characteristics,

including his motive for reentry.

Medina’s substantive-unreasonableness claim is reviewed for abuse of

discretion. Mondragon-Santiago, 564 F.3d at 360. Although post-Booker, the

advisory sentencing Guidelines are advisory only, 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, 50-51 (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).

When, as here, the district court imposes a sentence within a properly-calculated

Guidelines range, we accord great deference to the sentence and apply a

rebuttable presumption of reasonableness. Gall, 552 U.S. at 51-52; United

States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).

Although he made related objections in district court, Medina did not

object to the reasonableness of his sentence; therefore, that claim would likely

be reviewed only for plain error. See United States v. Peltier, 505 F.3d 389, 391-

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No. 10-50380

92 (5th Cir. 2007). Deciding whether to apply plain-error review is unnecessary,

however, because Medina has failed to rebut the presumption of reasonableness

under the more lenient abuse-of-discretion standard.

Contrary to Medina’s assertion, the court adequately weighed the § 3553

sentencing factors. See, e.g., United States v. Aguirre-Villa, 460 F.3d 681, 683

(5th Cir. 2006). It considered Medina’s criminal history category of IV, and

noted that six of his prior convictions were not considered in that category.

Although Medina contends the court erred in using his 15-year old burglary-of-adwelling conviction in its sentence enhancement, Guideline § 2L1.2 does not

place age limitations on prior convictions. U.S.S.G. § 2L1.2(b)(1)(A). The court

also considered Medina’s motive for reentry, and his not having understood the

punishment for such offense, but determined that a 60-month sentence was

appropriate.

Finally, Medina’s contention that his criminal record is improperly doublecounted under Guideline § 2L1.2, without any empirical basis, is also foreclosed

by our precedent. E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),

cert. denied, 130 S. Ct. 378 (2009) (recognizing discretion afforded district courts

in applying Guidelines to particular facts); see also Mondragon-Santiago, 564

F.3d at 366-67.

AFFIRMED.

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