     Case: 10-50140 Document: 00511349977 Page: 1 Date Filed: 01/13/2011




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

                                                 FILED
                                                                          January 13, 2011
                                     No. 10-50140
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LUIS ADAN URENA-GONZALEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-955-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Luis Adan Urena-Gonzalez (Urena) pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326(a). The district court sentenced Urena to 87 months
of imprisonment, which was within the guidelines range of 70 to 87 months.
Urena appeals, arguing that his sentence, which includes a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2009) because he previously
was deported, or unlawfully remained in the U.S., following a conviction for a
felony drug trafficking offense for which the sentence imposed exceeded 13

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50140 Document: 00511349977 Page: 2 Date Filed: 01/13/2011

                                  No. 10-50140

months, is unreasonably long and greater than necessary to satisfy the goals of
18 U.S.C. § 3553(a). He also argues that the guideline for illegal reentry offenses
lacks an empirical foundation and double counts his criminal history and
therefore this court should not apply a presumption of reasonableness to his
sentence.
      Urena’s argument that his sentence is unreasonable because the illegal
reentry guideline results in an unfair double counting of criminal history by
including prior convictions in the offense level and criminal history has been
rejected by this court. See United States v. Duarte, 569 F.3d 528, 529-31 & n.2
(5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Moreover, Duarte, 569 F.3d at
529-31, held that the possibility of unjust sentences does not give this court
authority to overturn the appellate presumption of reasonableness that applies
to within-guidelines sentences. Also, in United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009), this court
determined that Kimbrough v. United States, 552 U.S. 85 (2007), “does not
require discarding the presumption [of reasonableness] for sentences based on
non-empirically-grounded Guidelines.”       Thus, Urena’s sentence, which was
within the properly calculated guidelines range, is entitled to an appellate
presumption of reasonableness. See United States v. Newson, 515 F.3d 374, 379
(5th Cir. 2008).   Also, the record reflects that the district court made an
individualized sentencing decision based on the facts of the case in light of the
factors in § 3553(a). See Gall v. United States, 522 U.S. 38, 50 (2007). The
district court’s conclusion that a within-guidelines sentence is appropriate is
entitled to deference, and we presume that it is reasonable.         Id. at 51-52;
Newson, 515 F.3d at 379. The district court was in a superior position to find
facts and assess their import under § 3553(a), Gall, 552 U.S. at 597-98, and we
see no reason to disturb the district court’s discretionary decision to impose a
sentence within the guidelines range.
      AFFIRMED.

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