                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                    Argued May 1, 2013
                                   Decided May 10, 2013

                                           Before

                            WILLIAM J. BAUER, Circuit Judge

                            RICHARD A. POSNER, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge


No. 12-2174

UNITED STATES OF AMERICA,                           Appeal from the United States District
     Plaintiff-Appellee,                            Court for the Southern District of Illinois.

       v.                                           No. 3:11-CR-30178-GPM-001

RUFINO TORRES-HERRERA,                              G. Patrick Murphy,
     Defendant-Appellant.                           Judge.


                                         ORDER

     Rufino Torres-Herrera, a Mexican citizen, pleaded guilty to being in the United States
illegally after his removal. See 8 U.S.C. § 1326(a). The district court sentenced him to 46
months’ imprisonment, the bottom of his Guidelines range. On appeal Torres-Herrera
challenges the sentence. Seeing no error, we affirm the judgment.

     Torres-Herrera was removed from the United States in July 2005 after serving 40 months
in prison for conspiracy to distribute cocaine, crack, and methamphetamine, see United States
v. Delgado, No. 02-CR-30081 (S.D. Ill. Dec. 2, 2003). In July 2011, Immigration and Customs
Enforcement learned that Torres-Herrera had possibly returned to his residence in Fairmont
No. 12-2174                                                                              Page 2


City, Illinois, and two months later ICE agents found him in his garage and arrested him.
Torres-Herrera pleaded guilty to violating § 1326(a), and faced 20 years’ imprisonment given
that he was removed after committing an aggravated felony, see id. § 1326(b)(2). A probation
officer calculated a Guidelines imprisonment range of 46 to 57 months based on a total offense
level of 21 and criminal history category of III. Torres-Herrera did not object to the probation
officer’s calculations.

     Torres-Herrera did file what he called a “motion for downward departure of sentence.”
In that motion he argued for a sentence below the Guidelines range asserting, among other
reasons, that he had assimilated into the United States culture. In response the government
argued for a high-end sentence. The prosecutor observed that Torres-Herrera not only had
violated the conditions of supervised release for his drug conviction when he reentered the
United States, but he also had been violating § 1326(a) the entire time since his return given
that the statute defines a continuing offense.

    At sentencing the district court adopted the probation officer’s undisputed Guidelines
calculation of 46 to 57 months. The judge acknowledged that he had read Torres-Herrera’s
“motion for downward departure of sentence” and interpreted it to argue that a reasonable
sentence would be one below the guidelines range. The judge then invited the lawyers to
make arguments, and defense counsel did not repeat or stress any of the arguments made in
his written submission. The judge decided not to impose a sentence below the Guidelines
range given Torres-Herrera’s prior conviction for a drug conspiracy and selected 46 months.

     In his brief Torres-Herrera does not argue that the district court committed error. In his
summary of the argument, for example, he simply asserts that the district court acknowledged
but rejected his argument for a “lesser” sentence. And he filed no reply to the government’s
assertion that Torres-Herrera had not assigned error to the district court. At oral argument
Torres-Herrera’s counsel finally contended that the sentence was unreasonable. We disagree.
Torres-Herrera has not identified a reason to rebut the presumption of reasonableness
applicable to his within-guidelines sentence. See Rita v. United States, 551 U.S. 338, 350–51
(2007); United States v. Moreno-Padilla, 602 F.3d 802, 810 (7th Cir. 2010). At oral argument
counsel contended that the district court was wrong to discount Torres-Herrera’s cultural-
assimilation argument, but in the realm of discretionary sentencing district judges are not
required to accept arguments in mitigation. See United States v. Jackson, 547 F.3d 786, 794–95
(7th Cir. 2008); United States v. Blue, 453 F.3d 948, 952–55 (7th Cir. 2006).
                                                                                  AFFIRMED.
