     Case: 13-50420      Document: 00512552082         Page: 1    Date Filed: 03/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50420
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 6, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JUAN CARLOS EGUINO-ORDUNO

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-143-1


Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
       Juan Carlos Eguino-Orduno pleaded guilty, without the benefit of a plea
agreement, to illegal reentry. The district court imposed a 48-month prison
term, which was within the advisory guidelines range, to be followed by three
years of supervised release. Eguino-Orduno now challenges the substantive
reasonableness of his sentence, contending that the court committed a clear
error in judgment in balancing the relevant sentencing factors. Specifically,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50420

he argues that the sentence overstated the seriousness of his criminal
history—two 1992 convictions for second degree murder, which he committed
when he was 19 years old—and failed to account for his rehabilitation, his
motive for returning to the United States, and that he is unlikely to reenter
the United States again. He also faults the court for failing to consider that
the guideline that he was sentenced under—U.S.S.G. § 2L1.2—lacks an
empirical basis and thus, in his view, produced a sentencing range greater than
necessary to reflect the seriousness of his offense, which, he maintains,
amounted to a mere international trespass. The parties disagree about the
applicable standard of review. Because Eguino-Orduno fails under an abuse-
of-discretion review, we need not reach this issue.
       In the district court, Eguino-Orduno argued for a below-guidelines
sentence. The district court was well aware of the effect that Eguino-Orduno’s
prior convictions had on the calculation of the guidelines range. Eguino-
Orduno argued to the district court that his young age at the time of his earlier
crimes, the context of earlier crimes, the changes that he had made in his life
since then, 1 his motivation for returning to the United States, and his avowal
to never return again militated in favor of a more lenient prison sentence, but
nonetheless the district court imposed a sentence within the guidelines range.
       “[T]he sentencing court is in a better position to find facts and judge their
import . . . .” United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011) (internal
quotation marks and citation omitted). Eguino-Orduno’s within-guidelines
sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant


       1 On appeal, Eguino-Orduno emphasizes his rehabilitation to a greater degree than
he did before the district court, but information regarding his rehabilitation was reflected in
the presentence investigation report.


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                                  No. 13-50420

weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” Id. at
186.
        As for Eguino-Orduno’s arguments that the court should have given him
a lower sentence because § 2L1.2 lacks an empirical basis and so produced a
sentencing range greater than necessary to reflect the seriousness of his
offense, it was within the district court’s discretion to determine that the illegal
reentry guideline generated a guidelines range that was too high, see United
States v. Gomez-Herrera, 523 F.3d 554, 557 n.1 (5th Cir 2008), but this reality
does not overcome the presumption of reasonableness. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). With regard to
Eguino-Orduno’s contention that illegal reentry amounts to a mere trespass
offense, we have implicitly rejected the assertion that this characterization of
the offense renders a within-guidelines sentence unreasonable. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). When we consider
Eguino-Orduno’s sentence in light of the deference set forth in Gall v. United
States, 552 U.S. 38, 51 (2007), none of Eguino-Orduno’s contentions rebuts the
presumption that his within-guidelines sentence is reasonable, and he has not
shown that the district court abused its discretion.
        AFFIRMED.




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