IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED December 15, 2009 No. 09-50167 Conference Calendar Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE LUIS ZUNIGA-MENDEZ,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2131-1

Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* Jose Luis Zuniga-Mendez appeals the 46-month sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of

. He contends that the sentence was greater than necessary to accomplish the sentencing goals set forth in

(a) and was therefore substantively unreasonable. Specifically, Zuniga-Mendez argues that the Guidelines overstated the seriousness of his non-violent illegal reentry

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 09-50167

offense and failed to account for his benign motives for returning to the United States. This court reviews the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States,

(2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos- Maldonado,

(5th Cir.), cert. denied,

(2008). Zuniga-Mendez contends that the presumption of reasonableness should not apply to sentences calculated under U.S.S.G. § 2L1.2 because that provision lacks an empirical basis and double counts a defendant’s criminal history. As he acknowledges, his argument is foreclosed by circuit precedent. See United States v. Mondragon-Santiago,

(5th Cir.), cert. denied,

(2009); United States v. Duarte,

(5th Cir.), cert. denied,

(2009). The district court considered Zuniga-Mendez’s request for a downward variance, and it ultimately determined that a sentence at the bottom of the applicable guidelines range was appropriate based on the circumstances of the case and the § 3553(a) factors. Zuniga-Mendez’s assertions that the non-violent nature of his offense and his motive for reentering the United States justified a lower sentence are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera,

(5th Cir.), cert. denied,

(2008). As Zuniga-Mendez has not demonstrated that the district court’s imposition of a sentence at the bottom of the guidelines range was an abuse of discretion, the district court’s judgment is AFFIRMED.

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