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

                                                             FILED
                                                           February 12, 2010
                            No. 09-50462
                         Conference Calendar           Charles R. Fulbruge III
                                                               Clerk

UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee

v.

JOSE GUADALUPE MARTINEZ-ORTEGA, also known as Juan Carlos
Sanchez-Avila,

                                      Defendant-Appellant


                          Consolidated with
                            No. 09-50471


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee
v.

JOSE GUADALUPE MARTINEZ-ORTEGA, also known as Jose Urbin,

                                      Defendant-Appellant


             Appeals from the United States District Court
                   for the Western District of Texas
                       USDC No. 3:06-CR-748-1
                       USDC No. 3:08-CR-3511-1
                                      No. 09-50462
                                    c/w No. 09-50471

Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Guadalupe Martinez-Ortega (Martinez) appeals the sentence imposed
following his guilty plea to illegal reentry. Martinez argues that the district
court’s within-guidelines sentence was substantively unreasonable because it
was greater than necessary to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a). In support thereof, he contends that the illegal reentry Guideline is
not empirically based because the defendant’s criminal record is double-counted
and that his personal history and characteristics, the nonviolent nature of his
offense, and his revocation sentence warranted a sentence at the bottom of the
guidelines range.
       We review the substantive reasonableness of Martinez’s sentence for an
abuse of discretion.        Gall v. United States, 552 U.S. 38, 51 (2007).                  A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable. Rita v. United States, 551 U.S. 338, 347 (2007).
       Martinez’s argument that his sentence is unreasonable because the illegal
reentry Guideline is not empirically based was rejected by this court in United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009). His argument that his personal history and characteristics entitled him
to leniency is also unavailing. “[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,” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),
cert. denied, 129 S. Ct. 328 (2008), and, citing Martinez’s two prior illegal reentry
convictions, the sentencing judge determined that the sentence imposed would
promote Martinez’s respect for the law. See § 3553(a)(2)(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.

                                              2
                                  No. 09-50462
                                c/w No. 09-50471

      Finally, Martinez’s suggestion that his within-guidelines sentence was
unreasonable because of the nonviolent nature of his illegal reentry offense and
in light of his revocation sentence is also unavailing; his disagreement with the
propriety of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. Cf. United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008).
      AFFIRMED.




                                        3
