     Case: 11-50165     Document: 00511634191         Page: 1     Date Filed: 10/17/2011




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

                                                                            FILED
                                                                         October 17, 2011
                                     No. 11-50165
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE HUMBERTO NIETO-MOSQUEDA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2767-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Humberto Nieto-Mosqueda appeals his 46-month sentence following
his guilty-plea conviction for illegal reentry and using a fraudulent visa. He
maintains the sentence is substantively unreasonable because it is greater than
necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a).
Relying on United States v. Galvez-Barrios, 355 F. Supp. 2d 958, 961-63 (E.D.
Wis. 2005), Nieto contends: the Guidelines range was too severe because
Guideline § 2L1.2 (providing, inter alia, a 16-level enhancement for illegal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50165   Document: 00511634191      Page: 2    Date Filed: 10/17/2011

                                  No. 11-50165

reentry following a drug trafficking offense) is not empirically based and double-
counts a defendant’s criminal record; the advisory Guideline sentencing range
overstated the seriousness of his criminal history and nonviolent reentry offense;
and that range failed to account for his motive for reentering–to be with his
family and to be a father to his three young daughters.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in the light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Our court first
determines whether the district court committed any significant procedural
error; and, if not, the sentence is reviewed for substantive unreasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed
within a properly calculated guidelines [sentencing] range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008).
      The district court considered Nieto’s reasons for a lower sentence but
determined a 46-month within-Guidelines sentence was appropriate. “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” Campos-Maldonado,
531 F.3d at 339. Nieto’s contentions–§ 2L1.2’s lack of an empirical basis, the
double-counting of his prior conviction, the nonviolent nature of his offense, his
motive for reentry, and his personal history and characteristics all 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).
      AFFIRMED.




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