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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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