     Case: 12-51266       Document: 00512386211         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 12-51266
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR AMILCAR RUBI-VALLECILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-652-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Hector Amilcar Rubi-Vallecillo appeals his 46-month within-guidelines
sentence for illegal reentry after removal as substantively unreasonable. He
argues that his sentence was unreasonable because the illegal reentry guideline
lacks an empirical basis and double counts criminal history, that his motive for
returning to the United States was benign, and that illegal reentry essentially
is a mere trespass offense.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51266     Document: 00512386211      Page: 2    Date Filed: 09/25/2013

                                  No. 12-51266

      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Rubi-Vallecillo asserts that a presumption of reasonableness should not
apply to his within-guidelines sentence because the illegal reentry guideline is
not supported by empirical data, but he recognizes that this argument is
foreclosed. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009).
      We previously have rejected similar arguments challenging the
reasonableness of a sentence. See Duarte, 569 F.3d at 529-31 (arguing the lack
of an empirical basis for the applicable guideline rendered the sentence
unreasonable); United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008) (arguing that benign motive for reentry rendered sentence unreasonable);
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (arguing that
illegal reentry is a mere trespass offense). In the instant case, the district court
had before it both mitigating and aggravating factors. It balanced these factors
and determined that a sentence at the middle of the applicable guidelines range
was appropriate. 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 v. United States, 552 U.S. 38, 51 (2007). We conclude there
is no reason to disturb the presumption of reasonableness in this case. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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