     Case: 14-50528      Document: 00512987300         Page: 1    Date Filed: 03/31/2015




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

                                                                                     FILED
                                                                                 March 31, 2015
                                    No. 14-50528
                                  Summary Calendar                                Lyle W. Cayce
                                                                                       Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TOMAS LUNA VARELA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-577-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Mexican national Tomas Luna Varela (Luna) appeals the 36-month
within-guidelines sentence he received following his conviction for illegal
reentry, in violation of 8 U.S.C. § 1326. Luna contends that his sentence is
substantively unreasonable because it is greater than necessary to achieve the
purposes of 18 U.S.C. § 3553(a), particularly given his age and the attendant
low risk of recidivism. He concedes that a presumption of reasonableness


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50528       Document: 00512987300   Page: 2   Date Filed: 03/31/2015


                                  No. 14-50528

applies to his within-guidelines sentence but urges, for the first time, that no
such presumption should apply because the illegal reentry guideline is not
empirically supported and overstates the seriousness of the offense.
      As Luna concedes, his argument that the presumption of reasonableness
should not apply because the illegal reentry guideline is not empirically
supported is foreclosed. United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir. 2009). His challenge to the illegal reentry guideline on the
ground that it overstates the seriousness of the offense is similarly unavailing.
See United States v, Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Luna has failed to rebut the presumption of reasonableness attached to
his within-guidelines sentence. The district court’s comments at sentencing
clearly demonstrate that it considered Luna’s age, along with other
circumstances, including his criminal past, in imposing sentence where it did
within the guidelines range.       Luna does not point to any overlooked or
improperly considered factors, and his mere disagreement with the propriety
of the sentence imposed does not establish that his sentence is unreasonable.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); see also United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). His challenge
to his sentence is essentially a request to have this court reweigh the
sentencing factors, which this court will not do. See Gall v. United States, 552
U.S. 38, 51-52 (2007).
      AFFIRMED.




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