     Case: 11-50598     Document: 00511851525         Page: 1     Date Filed: 05/10/2012




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

                                                                            FILED
                                                                           May 10, 2012
                                     No. 11-50598
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE DANIEL RODRIGUEZ, also known as Daniel Rodriguez, also known as
Danny Espinoza,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-484-1


Before JONES, Chief Judge, and BENAVIDES and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Daniel Rodriguez appeals following his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to
46 months of imprisonment and three years of supervised release. He contends
that the 46-month sentence is substantively unreasonable because it is greater
than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50598    Document: 00511851525      Page: 2    Date Filed: 05/10/2012

                                  No. 11-50598

      Because the sentence was within the properly calculated guidelines range
of 46 to 57 months of imprisonment, it is entitled to a presumption of
reasonableness. See United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir. 2008). “The presumption is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
      The district court had before it both mitigating and aggravating factors
and determined that a sentence at the bottom of the guidelines range was
appropriate, especially in light of Rodriguez’s criminal record. Rodriguez has not
shown that the district court’s balancing of these factors “represents a clear error
of judgment.” Id.; see also Rita v. United States, 551 U.S. 338, 359-60 (2007). He
has thus failed to rebut the presumption of reasonableness that we apply to his
within-guidelines sentence. See Campos-Maldonado, 531 F.3d at 338.
      Rodriguez raises one additional argument, which he acknowledges is
foreclosed by our precedent, to preserve for further review. He argues that the
presumption of reasonableness should not be applied to his sentence because
U.S.S.G. § 2L1.2, the illegal reentry Guideline, lacks an empirical basis. We
have consistently rejected Rodriguez’s argument, concluding that Kimbrough v.
United States, 552 U.S. 85 (2007), does not question the presumption of
reasonableness and does not require district or appellate courts to independently
analyze the empirical grounding behind each individual guideline. See United
States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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