     Case: 10-50558 Document: 00511450346 Page: 1 Date Filed: 04/19/2011




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

                                                 FILED
                                                                            April 19, 2011
                                     No. 10-50558
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN FRANCISCO ELIZONDO-RAMOS, also known as Juan Elizondo, also
known as Francisco Elizondo, also known as Juan Francisco Elizondo, also
known as Angel Elizondo, also known as Juan F. Elizondo,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2361-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Francisco Elizondo-Ramos (Elizondo) appeals the within guidelines
sentence imposed following his guilty plea to illegal reentry. Elizondo argues
that the sentence was unreasonable because the illegal reentry Guideline,
U.S.S.G. § 2L1.2, is not empirically based and, additionally, failed to account for
his personal history and characteristics and the seriousness of his 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50558 Document: 00511450346 Page: 2 Date Filed: 04/19/2011

                                  No. 10-50558

Although some of these arguments were raised below, Elizondo did not object to
the reasonableness of his sentence; therefore, review may be for plain error only.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). We need not
determine whether plain error review is appropriate in this case, however,
because Elizondo is not entitled to relief even assuming he preserved these
issues.
      Elizondo argues that the presumption of reasonableness should not be
afforded his within guidelines sentence because, without empirical basis, § 2L1.2
double-counts criminal history. He correctly concedes that this argument is
foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th
Cir. 2009), and raises it to preserve the argument’s further review.
      Elizondo’s argument that his sentence is unreasonable because the illegal
reentry Guideline is not empirically based was rejected by this court in United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009). Insofar as Elizondo argues that his personal history and characteristics
entitled him to a more lenient sentence, “the sentencing judge is in a superior
position to find facts and judge their import under [18 U.S.C.] § 3553(a) with
respect to a particular defendant.” United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir. 2008). Elizondo’s mere disagreement with the propriety
of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within guidelines sentence. Cf. United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
      AFFIRMED.




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