     Case: 12-50180       Document: 00512083334         Page: 1     Date Filed: 12/13/2012




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

                                                                            FILED
                                                                        December 13, 2012
                                     No. 12-50180
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO CALDERA-PINA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-825-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Rogelio Caldera-Pina pleaded guilty, without the benefit of a plea
agreement, to illegally reentering the United States.                  He challenges as
unreasonably high his 39-month prison sentence, which was near the low end
of the advisory guidelines range. Generally, our review of the substantive
reasonableness of a sentence is for abuse of discretion, Gall v. United States, 552
U.S. 38, 51 (2007), though the Government urges us to review only for plain
error, arguing that Caldera-Pina did not preserve the issue in the district court.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50180     Document: 00512083334      Page: 2   Date Filed: 12/13/2012

                                  No. 12-50180

Even if counsel’s statement at sentencing preserved the issue, Caldera-Pina’s
arguments are unavailing.
      We presume that a within-guidelines sentence, like Caldera-Pina’s, is
reasonable. See United States v. Alvarado, 691 F.3d 592, 596 (5th Cir. 2012);
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). A defendant can rebut
the presumption of reasonableness only if he shows that the sentence did not
account for a factor that should have received significant weight, gave significant
weight to an irrelevant or improper factor, or represented a clear error of
judgment in balancing sentencing factors. Alvarado, 691 F.3d at 596. Caldera-
Pina contends that his sentence should not be presumed reasonable because the
illegal reentry guideline used to determine his sentence is not supported by
empirical data. As he correctly concedes, however, this argument is foreclosed.
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).
      Caldera-Pina also argues that the district court made a clear error in
judgment in imposing a within-guidelines sentence because, he asserts, the
guidelines range failed to account for his family circumstances and
responsibilities, his minimal criminal history, and his motive for returning to the
United States. The district court expressly took into account Caldera-Pina’s
circumstances and his support of his family, but it also considered that Caldera-
Pina returned to the United States soon after being deported. Moreover, it
referenced other relevant factors including the need for deterrence, the
seriousness of the offense, promoting respect for the law, and providing just
punishment. Caldera-Pina’s argument amounts to a disagreement with the
balance among the sentencing factors that the district court struck, but he has
not shown that the district court made a clear error in judgment in weighing the
factors. See Alvarado, 691 F.3d at 596.
      Accordingly, the judgment of the district court is AFFIRMED.



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