     Case: 13-50310      Document: 00512587113         Page: 1    Date Filed: 04/07/2014




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


                                    No. 13-50310                                  FILED
                                  Summary Calendar                             April 7, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ALBERTO GARCIA-GARCIA, also known as Jesus Alberto Garcia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-941-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jesus Alberto Garcia-Garcia appeals the sentence imposed for his
conviction for illegal reentry into the United States. He contends that his
sentence is substantively unreasonable because it was greater than necessary
to accomplish the sentencing goals under 18 U.S.C. § 3553(a). The district
court sentenced him to 51 months of imprisonment and three years of
supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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      The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Garcia-Garcia was sentenced within his advisory guidelines range, and his
sentence is presumptively reasonable. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). He wishes to preserve for further review
the argument that the presumption of reasonableness should not apply to
within-guidelines sentences calculated under U.S.S.G. § 2L1.2 because § 2L1.2
lacks an empirical basis. As conceded by him, such an argument is foreclosed
by our precedent. See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th
Cir. 2011).
      Garcia-Garcia argues that his sentence was greater than necessary
because § 2L1.2 lacks empirical support and double counted his prior New York
conviction for third degree robbery, which was the basis for both his 16-level
crime-of-violence enhancement and his criminal history points. He asserts
that his robbery conviction resulted in only a 90-day sentence and was less
serious than many other offenses that qualify for a 16-level enhancement
under § 2L1.2. He further asserts that the instant case was his first illegal
reentry offense; he was ignorant of the consequences for illegally reentering
the United States and is unlikely to return again; his criminal history was
sparse; and he was not a danger to the public but instead a poor, hardworking
man who lived and worked in the United States to support his family.
      The district court listened to Garcia-Garcia’s arguments for a lesser
sentence but found that a 51-month sentence was appropriate.             “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Garcia-Garcia has not
shown that his sentence was an abuse of discretion.               See United
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States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Gomez-Herrera, 523 F.3d
at 565-66.
      AFFIRMED.
