     Case: 11-51122     Document: 00511998522         Page: 1     Date Filed: 09/25/2012




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

                                                                            FILED
                                                                        September 25, 2012
                                     No. 11-51122
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS OMAR RODRIGUEZ-GONZALEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1666-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Luis Rodriguez-Gonzalez (Rodriguez) appeals following his guilty plea
conviction of illegal reentry of the United States after removal.                   He was
sentenced to a 48-month term of imprisonment and to a three-year term of
supervised release.        Rodriguez contends that the 48-month sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals set forth in 18 U.S.C. § 3553(a). Specifically, he asserts that the
application of the illegal reentry guideline, U.S.S.G. § 2L1,2, resulted in an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51122    Document: 00511998522      Page: 2    Date Filed: 09/25/2012

                                  No. 11-51122

unreasonable sentence because his 1998 residential burglary conviction is less
serious than other offenses that also qualify for the 16-level enhancement,
because the previous conviction was remote in time, and, because, given his
youth when he committed the residential burglary, the prior offense does not
provide an accurate measure of either the seriousness of the offense or his risk
of recidivism. He also contends that the seriousness of the instant illegal reentry
offense is mitigated by the fear he felt in Mexico, where he was the victim of
violence following his removal.
      Rodriguez concedes that he did not object to his sentence as unreasonable,
but he asserts that no objection is not required to preserve the issue for appellate
review. We have held that a defendant’s failure to object at sentencing to the
reasonableness of his sentence triggers plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, we need not determine
whether plain error review is appropriate because Rodriguez’s arguments fail
even under the ordinary standard of review.
      Because Rodriguez’s sentence was within the properly calculated
guidelines range of 46 to 57 months of imprisonment, it is entitled to a
presumption of reasonableness. See United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Rodriguez contends that the
presumption of reasonableness should not be applied to a sentence calculated
under § 2L1.2, since the illegal reentry guideline is not supported by empirical
data or national experience.      However, as he concedes, this argument is
foreclosed by our precedent. See United States v. Duarte, 569 F.3d 528, 530 (5th
Cir. 2009).



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  Case: 11-51122    Document: 00511998522     Page: 3   Date Filed: 09/25/2012

                                 No. 11-51122

      The record reflects that the district court heard the mitigating arguments
offered by Rodriguez and considered them when determining his sentence. The
district court rejected Rodriguez’s request for a downward variance; it likewise
rejected the Government’s argument for a sentence of at least 53 months of
imprisonment. The district court instead concluded that a 48-month sentence
was appropriate in light of the § 3553(a) factors. We have recognized that “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” Campos-Maldonado,
531 F.3d at 339. Rodriguez has failed to demonstrate that the district court
failed to give the proper weight to any particular § 3553(a) factor or that his
sentence “represents a clear error of judgment in balancing sentencing factors.”
Cooks, 589 F.3d at 186. Therefore, he has failed to rebut the presumption of
reasonableness that is accorded to his within-guidelines sentence. See id.
      AFFIRMED.




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