United States v. Lopez , 348 F. App'x 995 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 09-40097
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GERMAN ORLANDO LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-662-1
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
German Orlando Lopez appeals the sentence imposed following his
conviction of one charge of illegal reentry into the United States. Lopez argues
that his sentence is procedurally unreasonable because the district court failed
to properly weigh the sentencing factors found in 18 U.S.C. § 3553(a) and that
his sentence is substantively unreasonable because it is greater than necessary
to satisfy the sentencing goals of § 3553(a). He also argues, for the purpose of
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-40097
preserving the issue for possible Supreme Court review, that his within-
guidelines sentence should not be presumed reasonable because U.S.S.G. § 2L1.2
is not empirically based and is penologically flawed. This argument is, as he
concedes, unavailing under our prior jurisprudence. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009), cert. denied, 2009 WL 3162196 (Oct. 5,
2009) (No. 09-6195); see also United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5, 2009) (No.
08-11099). His remaining arguments are likewise unavailing.
Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error.” Id. at 752-53. If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion. Id. at 751-53. Lopez’s argument concerning the
procedural unreasonableness of his sentence was not presented to the district
court and thus is reviewed for plain error only. See Mondragon-Santiago, 564
F.3d at 361.
Lopez’s arguments amount to a disagreement with the district court’s
weighing of the § 3553(a) factors and the appropriateness of his within-
guidelines sentence. He has not shown that his sentence was either procedurally
or substantively unreasonable, nor has he rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See United
States v. Armstrong, 550 F.3d 382, 405 (5th Cir. 2008); United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
2