     Case: 12-50655       Document: 00512289559         Page: 1     Date Filed: 06/27/2013




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

                                                                            FILED
                                                                           June 27, 2013
                                     No. 12-50655
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADA GARCIA-DIAZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-2128-1


Before SMITH, DeMOSS and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ada Garcia-Diaz (Garcia) pleaded guilty to one count of unlawful reentry
in violation of 8 U.S.C. § 1326. The district court sentenced her to 51 months in
prison, at the top of the guidelines range of 41 to 51 months. Garcia now
appeals, arguing that the guidelines range did not sufficiently account for her
history and characteristics, specifically: that she is a single mother of five
children with little education and few skills and earned little in Mexico; that she
came to the United States to find work so she could support her children, a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50655    Document: 00512289559     Page: 2   Date Filed: 06/27/2013

                                 No. 12-50655

benign motivation; and that she suffers from a personality disorder. She also
contends that the district court placed too much emphasis on her criminal
history, which consisted of a single conviction for conspiracy to possess
methamphetamine with intent to distribute, a conviction that resulted in a 16-
level enhancement and a criminal history category II.
      We review sentences for reasonableness, employing a deferential abuse-of-
discretion standard, see Gall v. United States, 552 U.S. 38, 49-50 (2007), and we
afford a sentence within a properly calculated guidelines range a rebuttable
presumption of reasonableness, see United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). The record shows that the district court heard and considered
Garcia’s arguments for a sentence below the guidelines range but concluded that
a sentence at the top of the range was appropriate. The district court was in a
superior position to find facts and judge their import under 18 U.S.C. § 3553(a).
Gall, 552 U.S. at 51-52. Garcia’s mere disagreement with the court’s assessment
of the sentencing factors is insufficient to rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
Garcia’s argument that the guidelines range placed too much weight on her
criminal history amounts to a disagreement with a policy decision by the
Sentencing Commission. Although a district court may have discretion to vary
from the guidelines range based on policy grounds, see United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008), the court does not
necessarily abuse its discretion by choosing to follow the Guidelines. United
States v. Rosales-Robles, 294 F. App’x 154, 155 (5th Cir. 2008) (unpublished).
      As Garcia properly concedes, we have previously rejected the contention
that the presumption of reasonableness should not apply because U.S.S.G.
§ 2L1.2 is flawed and not empirically based. See United States v. Duarte, 569
F.3d 528, 529-31 & n. 5 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009).
      AFFIRMED.

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