United States v. Saul Trejo-Gamboa , 669 F. App'x 197 ( 2016 )

Case: 15-51210 Document: 00513688101 Page: 1 Date Filed: 09/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51210 FILED
Summary Calendar September 22, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SAUL TREJO-GAMBOA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-1677-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Saul Trejo-Gamboa appeals the sentence imposed following his guilty
plea conviction for illegal reentry following deportation in violation of 8 U.S.C.
§ 1326. He contends that the 46-month, within-guidelines sentence was
substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals set forth in 18 U.S.C. § 3553(a). Trejo-Gamboa argues
that the sentence failed to account for his personal history and characteristics;
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51210 Document: 00513688101 Page: 2 Date Filed: 09/22/2016
No. 15-51210
specifically, his cultural assimilation and benign motive for returning to the
United States. He also argues that the sentence failed to reflect the
disproportionately harsh effect of his prior drug conviction on the applicable
guidelines range.
Trejo-Gamboa contends that a presumption of reasonableness should not
apply to sentences calculated under U.S.S.G. § 2L1.2 because the Guideline is
not empirically based. He acknowledges that his argument is foreclosed by
circuit precedent but seeks to preserve the issue for further review. As Trejo-
Gamboa concedes, we have consistently rejected his “empirical data”
argument. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 & n.7 (5th Cir.
2009).
The record reflects that the district court considered Trejo-Gamboa’s
mitigation arguments and the § 3553(a) factors. The district court ultimately
concluded that a sentence at the bottom of the guidelines range was sufficient,
but not greater than necessary, to satisfy the sentencing goals set forth in
§ 3553(a). Trejo-Gamboa’s assertions that § 2L1.2’s lack of an empirical basis,
the undue weight accorded his prior drug conviction, his cultural assimilation,
and his motive for reentering justified a lower sentence are insufficient to rebut
the presumption of reasonableness. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 519,
526 (5th Cir. 2008). Therefore, Trejo-Gamboa has failed to show that his 46-
month, within-guidelines sentence was substantively unreasonable. See
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). The
district court’s judgment is AFFIRMED.
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