     Case: 09-50590     Document: 00511103951          Page: 1    Date Filed: 05/07/2010




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

                                                  FILED
                                                                             May 7, 2010
                                     No. 09-50590
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN ANTONIO GANDARA-GONZALEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-439-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        The district court sentenced Juan Antonio Gandara-Gonzalez to serve 46
months in prison and a three-year term of supervised release following his
conviction of one count of illegal reentry into the United States. In this appeal,
Gandara-Gonzalez challenges his sentence, which was within the applicable
guidelines range, as being too severe. He argues that the pertinent Guideline,
U.S.S.G. § 2L1.2, is flawed because it is not empirically based and because it
ignores the remote nature of his prior offense as well as his age. In Gandara-

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50590   Document: 00511103951 Page: 2        Date Filed: 05/07/2010
                                No. 09-50590

Gonzalez’s opinion, his sentence is unduly harsh because the district court did
not properly weigh the sentencing factors given in 18 U.S.C. § 3553(a).
      Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez,
564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error.” Id. at 752-53. If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion. Id. at 751-53.
      Gandara-Gonzalez’s arguments concerning the district court’s balancing
of the § 3553(a) factors amount to a disagreement with the district court’s
weighing of these factors and the appropriateness of his within-guidelines
sentence. This disagreement does not suffice to show error in connection with
his sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
petition for cert. filed (Feb. 19, 2010) (No. 09-9216); United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). His
claim that his sentence is improper due to the flawed nature of § 2L1.2 is
likewise unavailing. See United States v. Mondragon-Santiago, 564 F.3d 357,
365-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Gandara-Gonzalez has not
shown that his sentence was either procedurally or substantively unreasonable,
nor has he rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence. See United States v. Armstrong, 550 F.3d 382, 405
(5th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009); United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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