     Case: 10-50208 Document: 00511316051 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 10-50208
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR RIOS-MARTINEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-607-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
       Victor Rios-Martinez (Rios) was convicted of one count of illegal reentry
into the United States, and the district court sentenced him to serve 46 months
in prison and a three-year term of supervised release. Rios filed a timely notice
of appeal.
       On appeal, Rios challenges only the sentence imposed. He maintains that
his within-guidelines sentence should not be presumed reasonable because
U.S.S.G. § 2L1.2 is not empirically based and is thus flawed under Kimbrough

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50208 Document: 00511316051 Page: 2 Date Filed: 12/08/2010

                                  No. 10-50208

v. United States, 552 U.S. 85, 109-10 (2007). He acknowledges, however, that we
have rejected this argument. United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      Rios also argues that the 46-month sentence imposed was greater than
necessary to achieve the goals of sentencing set forth at 18 U.S.C. § 3553(a). He
points out his difficult childhood and his problem with alcohol.        He also
maintains that the prior conviction that resulted in a 16-level enhancement
under § 2L1.2(b)(1)(A) was too temporally remote to warrant such an increase
in his sentencing range.
      Rios’s arguments concerning the district court’s weighing of his mitigating
sentencing factors amount to a disagreement with the district court’s weighing
of these factors and the appropriateness of his within-guidelines sentence. This
disagreement does not suffice to show error in connection with his sentence. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Rios has
not rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence, nor has he shown that his sentence was
unreasonable. See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006);
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Accordingly, the
judgment of the district court is AFFIRMED.




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