     Case: 11-50797     Document: 00511898095         Page: 1     Date Filed: 06/25/2012




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

                                                                            FILED
                                                                           June 25, 2012
                                     No. 11-50797
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

LUIS FERREL IBARRA,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-851-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Luis Ferrel Ibarra (Ferrel) appeals the 46-month sentence of
imprisonment imposed following his guilty-plea conviction for illegal reentry
after removal. Ferrel argues that his sentence, which was at the low end of the
calculated guidelines range, was unreasonable because it was greater than
necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a).                       In
particular, he argues that the guidelines range failed to account for his strong
family ties to the United States, the fact that his age makes him less likely to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50797    Document: 00511898095      Page: 2   Date Filed: 06/25/2012

                                  No. 11-50797

recidivate, and the likelihood that he will not reenter now that he is aware of the
severe punishment for illegal reentry.      Ferrel also argues that his within
guidelines sentence is not entitled to a presumption of reasonableness because
U.S.S.G. § 2L1.2, which applies to illegal reentry convictions, is not empirically
supported.
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because Ferrel’s
sentence was within the advisory guidelines range, his sentence is
presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Ferrel challenges the presumption of reasonableness applied to his
sentence, but he acknowledges the issue is foreclosed and raises it to preserve
the issue for further review. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
      The district court listened to Ferrel’s arguments in mitigation at the
sentencing hearing and concluded that a sentence outside of the guidelines range
was not warranted. In particular, the district court expressed concern over
Ferrel’s criminal history and the fact that he had returned not long after his last
removal, which had not resulted in a criminal prosecution. “[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.” Campos-Maldonado, 531 F.3d
at 339. Ferrel has not shown sufficient reason for this court to disturb the
presumption of reasonableness applicable to his sentence. See Cooks, 589 F.3d
at 186.
      Accordingly, the judgment of the district court is AFFIRMED.




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