     Case: 13-50201      Document: 00512484211         Page: 1    Date Filed: 12/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50201
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 30, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CESAR WILLIAN PINEDA-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1035-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Cesar Willian Pineda-Martinez appeals his 46-month within-guidelines
sentence for illegal reentry after removal. He argues that his sentence was
substantively unreasonable because the illegal reentry guideline lacks an
empirical basis and effectively double counts criminal history, because his
motive for returning to the United States was benign, and because illegal
reentry essentially is a trespass offense.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50201     Document: 00512484211      Page: 2   Date Filed: 12/30/2013


                                  No. 13-50201

      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Pineda-Martinez 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).
      We previously have rejected similar arguments challenging the
reasonableness of a sentence.      See Duarte, 569 F.3d at 529-31 (rejecting
argument that lack of an empirical basis for the applicable guideline rendered
the sentence unreasonable); United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008) (rejecting argument that benign motive for reentry
rendered sentence unreasonable); United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006) (rejecting argument that illegal reentry is a mere trespass
offense). In the instant case, the district court had before it both mitigating
and aggravating factors. It balanced these factors and determined that a
sentence at the middle of the applicable 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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