     Case: 11-50677     Document: 00511880570         Page: 1     Date Filed: 06/08/2012




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

                                                                            FILED
                                                                            June 8, 2012
                                     No. 11-50677
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SALVADOR BURGOS-RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-486-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Salvador Burgos-Rodriguez appeals the 57-month within-guidelines
sentence he received following his guilty plea to illegal reentry into the United
States after deportation. Burgos-Rodriguez argues that his sentence is greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a).                        He
specifically contends that the guidelines sentencing range was too severe
because the district court (1) did not consider his benign motive for illegally
reentering the country, (2) gave too much weight to his remote criminal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50677

convictions, and (3) did not consider the unwarranted sentencing disparity
between defendants like himself and defendants who are convicted in districts
with fast-track sentencing programs. He further contends that his sentence is
not entitled to a presumption of reasonableness because the drug guideline,
U.S.S.G. § 2L1.2, is not empirically based.
      We review sentences for reasonableness in light of the sentencing factors
in § 3553(a). United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.
2009). First, we consider whether the district court committed a significant
procedural error. Gall v. United States, 552 U.S. 38, 49-51 (2007). If there is no
error or the error is harmless, we review the substantive reasonableness of the
sentence imposed for an abuse of discretion. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
      Burgos-Rodriguez does not challenge the procedural reasonableness of his
sentence, and his substantive reasonableness arguments are unavailing. When
reviewing the reasonableness of a sentence within a properly calculated
guidelines range, we generally will infer that the district court considered all of
the fair sentencing factors set forth in the Sentencing Guidelines. United States
v. Mares, 402 F.3d at 511, 519 (5th Cir. 2005). The record reflects that the
district court expressly considered the § 3553(a) factors, as well as Burgos-
Rodriguez’s arguments, for mitigating his sentence but expressly overruled his
arguments and concluded that a within-guidelines sentence was “fair and
reasonable” considering the circumstances of the case. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline Burgos-
Rodriguez’s invitation to reweigh the § 3553(a) factors because “the 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).
      As he concedes, Burgos-Rodriguez’s fast-track argument is currently
foreclosed by circuit precedent. See United States v. Gomez-Herrera, 523 F.3d

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                                 No. 11-50677

554, 563 (5th Cir. 2008). His empirical data argument is also foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. Furthermore, Burgos-
Rodriguez’s sentence, which is at the bottom of the guidelines range, is presumed
reasonable. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.
2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Burgos-Rodriguez cannot demonstrate that the district court abused its
discretion by sentencing him to a within-guidelines 57-month prison term. See
Gall, 552 U.S. at 51. Accordingly, the district court’s judgment is AFFIRMED.




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