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United States Court of Appeals, Fifth CircuitOct 1, 2010
397 Fed. Appx. 44 (5th Cir. 2010)

No. 10-50049 Summary Calendar.

October 1, 2010.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:09-CR-444-1

Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.

Inmer Velasquez appeals the 57-month sentence imposed in connection with his guilty plea conviction for illegal reentry. He argues that his sentence is greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and that he should have been sentenced below the guidelines range. Velasquez argues that his benign motives for reentry support a sentence below the guidelines range. He also argues that the illegal reentry guideline's emphasis on criminal history and lack of empirical grounding led to an unreasonable sentence.

In reviewing a sentence, we normally "consider[] the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.'" United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because Velasquez did not object to his sentence as unreasonable after it was pronounced by the district court, our review is limited to review for plain error. See United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 2814, 174 L.Ed.2d 308 (2009). A plain error is a forfeited error that is clear or obvious and affects the defendant's substantial rights. United States v. Gonzalez-Guzman, 597 F.3d 695, 696 (5th Cir. 2010). When those elements are shown, this court has the discretion to correct the error only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

We are not persuaded that the illegal reentry guideline's emphasis on a defendant's criminal history and lack of empirical grounding necessarily renders a sentence computed under that guideline unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Velasquez's personal history and characteristics, including his motives for reentering the United States, are insufficient to rebut the presumption of reasonableness. See Gomez-Herrera, 523 F.3d at 565-66. Velasquez has not demonstrated that the district court's imposition of a 57-month sentence, a sentence at the top of the properly calculated guidelines range, was plain error.

The judgment of the district court is AFFIRMED.