     Case: 10-50014     Document: 00511249530          Page: 1    Date Filed: 09/30/2010




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

                                                 FILED
                                                                        September 30, 2010
                                     No. 10-50014
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GUADALUPE OLMOS-OLVERA, also known as Juan Garcia-Alvarado, also
known as Guadalupe Olvera Olmos, also known as Guadalupe Olmos, also
known as Antonio Alvarado, also known as Guadalupe Garcia, also known as
Guadalupe Olvera-Olmos, also known as Guadalupe Ramos-Olmos, also known
as Guadalupe Filiberto Olmos,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-452-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Guadalupe Olmos-Olvera (Olmos) pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326. The district court sentenced Olmos to 96 months of
imprisonment, which was within the advisory guidelines imprisonment range
of 77 to 96 months.           The calculation of this range included a 16-level


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50014    Document: 00511249530 Page: 2        Date Filed: 09/30/2010
                                 No. 10-50014

enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because Olmos was previously
deported following a conviction for a crime of violence. He now appeals, arguing
that his sentence is unreasonably long and greater than necessary to satisfy the
goals of 18 U.S.C. § 3553(a). He also argues that the guidelines that govern
illegal reentry offenses lack an empirical foundation and thus deprive his
sentence of a presumption of reasonableness on appeal.
      The district court heard Olmos’s arguments in mitigation of his sentence
and nevertheless concluded that a within-guidelines sentence was appropriate
in light of the facts before it. That conclusion is entitled to deference, and we
presume it is reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). The district court
was “in a superior position to find facts and assess their import under § 3553(a),”
Gall, 552 U.S. at 51, and we see no reason to disturb the district court’s
discretionary decision to impose a sentence within the guidelines range.
Furthermore, as Olmos concedes, his argument that the appellate presumption
of reasonableness is inapplicable due to the lack of an empirical basis in the
guidelines governing illegal reentry offenses is foreclosed. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009).
      AFFIRMED.




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