     Case: 11-50389     Document: 00511766014         Page: 1     Date Filed: 02/23/2012




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

                                                                            FILED
                                                                         February 23, 2012
                                     No. 11-50389
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALFREDO MIRANDA-PINEDA, also known as Huber Godoy-Sanchez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2696-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Alfredo Miranda-Pineda appeals his sentence following his conviction for
illegal reentry into the United States. The Government moves for summary
affirmance or, alternatively, for an extension of time to file an appellate brief.
Miranda-Pineda opposes summary affirmance.
        The district court sentenced Miranda-Pineda within his advisory
guidelines range to 57 months of imprisonment and two years of nonreporting
supervised release.          Miranda-Pineda challenges only the substantive

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50389

reasonableness of his sentence. The substantive reasonableness of a sentence
is reviewed under an abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). Because Miranda-Pineda’s sentence was within his advisory
guidelines range, his sentence is presumptively reasonable. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Miranda-Pineda wishes to preserve for further review the argument that
the presumption of reasonableness should not apply to within-guidelines
sentences calculated under U.S.S.G. § 2L1.2 because § 2L1.2 lacks an empirical
basis and double counts criminal history.        As conceded by him, such an
argument is foreclosed by our precedent. See United States v. Rodriguez, 660
F.3d 231, 232-33 (5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009).
      Miranda-Pineda contends that his guidelines range was too severe because
the 16-level enhancement under § 2L1.2(b)(1)(A) was applied to him without
consideration of his age and the remoteness of the prior conviction that triggered
the enhancement. According to Miranda-Pineda, the 16-level enhancement is
flawed because it lacks an empirical basis and utilizes a blanket approach in
which defendants like him are treated the same as young defendants with
multiple recent convictions for violent crimes. He asserts that he is a 50-year-old
man who lacks any prior convictions in the past decade and that his 1994
conviction triggering the 16-level enhancement occurred nearly two decades ago.
He also contends that his guidelines range overstated the seriousness of his
instant illegal reentry offense and failed to account for his personal history and
circumstances.
      The district court listened to Miranda-Pineda’s arguments for a lesser
sentence but found that a sentence at the bottom of his guidelines range was
appropriate. “[T]he sentencing judge is in a superior position to find facts and
judge their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.

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                                     No. 11-50389

2008). Miranda-Pineda has not shown sufficient reason for this court to disturb
the presumption of reasonableness applicable to his sentence. See Rodriguez,
660 F.3d at 234; Duarte, 569 F.3d at 529-31; Gomez-Herrera, 523 F.3d at 565-66.
      Although we conclude that the judgment may be affirmed without further
briefing, summary affirmance is not appropriate. See United States v. Holy
Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). Thus, we deny
the Government’s motion for summary affirmance or, alternatively, for an
extension of time to file a brief.
      AFFIRMED; MOTION DENIED.




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