     Case: 14-51058      Document: 00513015950         Page: 1    Date Filed: 04/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51058
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOAQUIN GARDUNO-CASTILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-880-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Joaquin Garduno-Castillo appeals the sentence imposed for his guilty
plea conviction of illegal reentry following deportation in violation of 8 U.S.C.
§ 1326.     He contends that the 24-month within-guidelines sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a). According to Garduno-
Castillo, the guidelines range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51058

U.S. Sentencing Guideline § 2L1.2 is not empirically based and effectively
double counts a criminal record. He also urges that the guidelines range
overstated the seriousness of his non-violent reentry offense and failed to
account for his personal history and characteristics. He specifically cites his
arrival in the United States at the age of 19, the 17 years he spent working for
the same landscaping company, his close relationship with his wife and four
children, who are United States citizens and live in Illinois, and his desire to
reunite with and support them.
      We consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). When, as here, the district court imposes a sentence within a properly
calculated guidelines range, we “give great deference to that sentence and will
infer that the judge has considered all the factors for a fair sentence set forth
in the Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)
(internal quotation marks and citation omitted). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.
      In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review, Garduno-
Castillo argues that the presumption of reasonableness should not apply
because § 2L1.2 lacks an empirical basis. As Garduno-Castillo concedes, his
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009). We have also rejected arguments that double-counting necessarily
renders a sentence unreasonable, see Duarte, 569 F.3d at 529-31, and that the
Guidelines overstate the seriousness of illegal reentry because it is only a



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                                 No. 14-51058

non-violent international-trespass offense, see United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006).
      The district court considered the § 3553(a) factors and Garduno-
Castillo’s arguments for leniency and concluded that a sentence within the
guidelines range was sufficient, but not greater than necessary, to satisfy the
goals in § 3553(a). Garduno-Castillo’s assertions that § 2L1.2’s lack of an
empirical basis, the double-counting, the non-violent nature of his offense, his
employment history, his close ties to his wife and children, and his motive for
reentering justified a lower sentence are insufficient to rebut the presumption
of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008). Therefore, he has failed to show that the within-guidelines
sentence is substantively unreasonable. See Gall, 552 U.S. at 51.
      The judgment of the district court is AFFIRMED.




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