     Case: 11-50801     Document: 00511973834         Page: 1     Date Filed: 09/04/2012




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

                                                                            FILED
                                                                        September 4, 2012
                                     No. 11-50801
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RENE ARTURO ADAME-WILSON, also known as Javier Lopez Garcia, also
known as Fernando Morales Rodriguez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-327-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Rene Arturo Adame-Wilson appeals the 30-month within-guidelines
sentence he received following his guilty plea to attempted illegal reentry and
personating another when applying for admission to this country. Adame-
Wilson argues that his sentence is greater than necessary to meet the sentencing
goals of 18 U.S.C. § 3553(a). He specifically contends that the guidelines
sentencing range was too severe because the district court (1) gave too much


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50801

weight to a previous conviction for drug trafficking, (2) did not consider his
benign motive for attempting to illegally reenter the country, (3) did not consider
that his reentry offense was a mere international trespass, and (4) did not
consider that this was his first illegal reentry offense. He further contends that
his sentence is not entitled to a presumption of reasonableness because the
illegal reentry guideline, U.S.S.G. § 2L1.2, is not empirically based.
      Generally, we review sentences for reasonableness in light of the
sentencing factors in § 3553(a). United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009) (citation omitted). First, we consider whether the
district court committed a significant procedural error. Gall v. United States,
552 U.S. 38, 51 (2007). If there is no error or the error is harmless, we review
the substantive reasonableness of the sentence imposed for an abuse of
discretion. Id.; United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.
2009).   However, because Adame-Wilson did not raise his substantive
reasonableness argument in the district court, we review for plain error only.
See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
      The record reflects that the district court heard Adame-Wilson’s
arguments in mitigation of his sentence but nevertheless concluded that a
within-guidelines sentence was appropriate. See United States v. Rodriguez, 523
F.3d 519, 526 (5th Cir. 2008). Accordingly, we decline Adame-Wilson’s invitation
to reweigh the sentencing factors because “the sentencing judge is in a superior
position to find facts and judge their import under § 3553(a) with respect to a
particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008). The fact that this court “might reasonably have concluded that
a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall, 552 U.S. at 51.
      As he concedes, Adame-Wilson’s empirical data argument is foreclosed by
this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529–31 (5th
Cir. 2009); Mondragon-Santiago, 564 F.3d at 366–67 & n.7. We have rejected

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                                  No. 11-50801

the argument that a guidelines sentence under § 2L1.2 is unreasonable because
illegal reentry is a trespass offense. See United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006). Furthermore, Adame-Wilson’s sentence, which is at the
bottom of the applicable guidelines range, is presumed reasonable. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). His general
disagreement with the propriety of his sentence and the district court’s weighing
of the § 3553(a) factors are insufficient to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. See United States
v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (citations omitted); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted).
      Adame-Wilson has not demonstrated that the district court plainly erred
by sentencing him to a within-guidelines 30-month prison term. See Gall, 552
U.S. at 51; Peltier, 505 F.3d at 392. Accordingly, the judgment of the district
court is AFFIRMED.




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