     Case: 14-50615      Document: 00513023526         Page: 1    Date Filed: 04/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50615
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 28, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ENOC RAMIREZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-1314-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Enoc Ramirez-Garcia appeals the sentence imposed for his conviction for
illegal reentry into the United States.           He contends that his sentence is
substantively unreasonable because it is greater than necessary to accomplish
the sentencing goals under 18 U.S.C. § 3553(a). The district court sentenced
him to 46 months of imprisonment, which corresponded to the bottom of his
advisory guidelines range, and three years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50615

      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 Ramirez-Garcia’s sentence is 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). Ramirez-Garcia 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.       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).
      Ramirez-Garcia argues that his sentence is greater than necessary
because § 2L1.2 lacks empirical support and effectively double counts a
defendant’s criminal history through enhancements, such as his 16-level drug-
trafficking enhancement, that are based on prior convictions.        He further
contends that his sentence overstates the seriousness of his instant illegal
reentry offense and fails to account for the fact that this offense was his first
illegal reentry into the United States; he had a limited criminal history; he had
a history of agricultural work and reentered the United States to earn more
money to assist his ailing mother; and his 46-month sentence is substantially
longer than the sentence he received for his prior drug-trafficking conviction.
      We have rejected the argument that a sentence based on § 2L1.2 is
substantively unreasonable because § 2L1.2 lacks empirical support or
effectively double counts a defendant’s criminal history. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Ramirez-Garcia’s remaining
arguments concerning the § 3553(a) factors do not rebut the presumption of
reasonableness applicable to his sentence. See Gomez-Herrera, 523 F.3d at
565-66; United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). The



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                                No. 14-50615

district court listened to his arguments for a lesser sentence but found that a
46-month sentence was appropriate. “[T]he 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).     Ramirez-Garcia has not shown that his sentence is
substantively unreasonable.
      AFFIRMED.




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