     Case: 12-50539       Document: 00512186398         Page: 1     Date Filed: 03/25/2013




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

                                                                            FILED
                                                                          March 25, 2013
                                     No. 12-50539
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JACOB ULISES GOMEZ-DIAZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-45-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       For the first time on appeal, Jacob Ulises Gomez-Diaz asserts that his
41-month within-guidelines sentence for illegal reentry after removal is
substantively unreasonable. He argues that his sentence was greater than
necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a) because the
illegal reentry guideline lacks an empirical basis and double counts his criminal
history, his prior conviction was less serious than other kinds of offenses that
result in the same guidelines enhancement, his prior conviction occurred when

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50539     Document: 00512186398      Page: 2   Date Filed: 03/25/2013

                                  No. 12-50539

he was 19 years old, his motive for returning to the United States was benign,
and the sentencing goals of deterrence and protection of the public could be
accomplished with a lesser sentence.
      Although we ordinarily review sentences for reasonableness under an
abuse-of-discretion standard, we review here for plain error because Gomez-Diaz
did not object to the reasonableness of his sentence in the district court. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Gomez-Diaz asserts that a presumption of reasonableness should not
apply to his within-guidelines sentence because the illegal reentry guideline is
not supported by empirical data, but he recognizes that this argument is
foreclosed. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009).
      The district court had before it both mitigating and aggravating factors.
It balanced these factors and determined that a sentence at the bottom of the
guidelines range was appropriate. The fact that this court “might reasonably
have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007). We
conclude there is no reason to disturb the presumption of reasonableness in this
case. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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