
    UNITED STATES of America, Plaintiff-Appellee v. Juan Jose VASQUEZ-GARCIA also known as, Cesilio Miranda, Defendant-Appellant.
    No. 08-51072
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    May 1, 2009.
    Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
    Henry Joseph Bemporad, Federal, Public Defender Federal Public Defender’s Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.
    Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
   PER CURIAM:

Juan Jose Vasquez-Garcia (Vasquez) appeals the 77-month sentence imposed by the district court following his guilty-plea conviction for being found unlawfully present in the United States subsequent to having been removed. See 8 U.S.C. § 1326. He argues that the within-guidelines sentence imposed by the district court is unreasonable because the sentence is greater than necessary to fulfill the sentencing purposes of 18 U.S.C. § 3553(a). Relying on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), he argues that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is flawed because it is not empirically based.

Regardless of whether a “particular Guideline is ... empirically-based,” this court “presume[s] a sentence within the current version of the Guidelines to be reasonable, and the defendant must rebut that presumption to demonstrate substantive unreasonableness.” United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir.2009). The district court imposed the 77-month sentence after commenting on Vasquez’s continued disregard for the law after his last illegal reentry conviction. Given the district court’s commentary, it cannot be said that the court failed to consider the factors of Section 3553(a). Vasquez has not rebutted the presumption that his sentence is reasonable. See Mondragon-Santiago, 564 F.3d at 366-67.

AFFIRMED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     