IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50563

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE LUIS SAUCEDO-MUNOZ, also known as Jose Luis Saucedo, also known

as Jose Luis Sauceda-Munoz, also known as Jehova Miranda,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-254-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Jose Luis Saucedo-Munoz appeals the 57-month sentence imposed

following his guilty plea conviction to one count of illegal reentry following

previous deportation. He argues that his sentence, which is at the bottom of the

applicable guidelines range, is unreasonable.

Saucedo-Munoz makes no argument that the district court committed any

procedural error regarding his sentence. Thus, this court’s review is confined to

United States Court of Appeals

Fifth Circuit

F I L E D

February 3, 2012

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. 11-50563

whether the sentence is substantively unreasonable. See Gall v. United States,

552 U.S. 38, 51 (2007). Citing United States v. Peltier, 505 F.3d 389, 391-92 (5th

Cir. 2007), Saucedo-Munoz acknowledges that this court’s review is for plain

error when a defendant fails to object to the reasonableness of a sentence after

the imposition of sentence. Nevertheless, he seeks to preserve for further review

his contention that an objection is not required when the argument is preserved

via a sentencing memorandum and oral argument at a sentencing hearing.

Although the arguments Saucedo-Munoz raises on appeal are the same

arguments he raised before the district court at sentencing and in his sentencing

memorandum, Saucedo-Munoz did not object to the reasonableness of his

sentence after it was imposed. Thus, as he acknowledges, review is arguably for

plain error. See Peltier, 505 F.3d at 391-92; but see United States v. Flanagan,

87 F.3d 121, 124 (5th Cir. 1996). However, this court need not determine

whether plain error review is appropriate because Saucedo-Munoz’s arguments

fail even under the abuse-of-discretion standard of review. See United States v.

Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

This court has consistently rejected Saucedo-Munoz’s argument that

U.S.S.G. § 2L1.2 results in an excessive sentence since it lacks an empirical basis

and involves double-counting of a prior offense. See United States v. Duarte, 569

F.3d 528, 529-30 (5th Cir. 2009). Further, as he acknowledges, Saucedo-Munoz’s

argument that he deserved a lesser sentence based upon the disparity in fast

track early disposition programs is foreclosed by United Stats v. Gomez-Herrera,

523 F.3d 554, 563 n.4 (5th Cir. 2008). Additionally, Saucedo-Munoz’s argument

that the district court failed to consider his personal circumstances is not

supported by the record. In response to Saucedo-Munoz’s cultural assimilation

argument, the district court pointed out that Saucedo-Munoz has “spent 19 of

the last 23 years in prison.” The district court concluded that Saucedo-Munoz

did “not merit any consideration for departure or variance.” See United States

v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2009). Other than to simply

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repeat the arguments made to the district court, Saucedo-Munoz has not shown

that the district court failed to give proper weight to his arguments or any

particular 18 U.S.C. § 3553(a) factor. He has thus failed to rebut the

presumption of reasonableness that is accorded his within-guidelines sentence. 

See Gomez-Herrera, 523 F.3d at 565-66.

Accordingly, the district court’s judgment is AFFIRMED. The

Government’s motion for summary affirmance is GRANTED IN PART as to the

issues in which relief is foreclosed by circuit precedent and DENIED IN PART

as to the issue of the reasonableness of Saucedo-Munoz’s sentence. However, no

further briefing is required, and the Government’s motion for an extension of

time to file a brief is DENIED.

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