     Case: 11-20329     Document: 00511788146         Page: 1     Date Filed: 03/14/2012




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

                                                                            FILED
                                                                          March 14, 2012
                                     No. 11-20329
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN LUCIO, also known as Juan Joe Lucio, also known as Juan Luci,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-680-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Juan Lucio appeals the 46-month, within-Guidelines sentence, imposed
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. Although acknowledging that a within-Guidelines sentence is presumed
reasonable, Lucio contends his sentence is substantively unreasonable because
it exceeds what is necessary to comply with 18 U.S.C. § 3553(a)(2). Lucio’s
having preserved this issue, review is for abuse of discretion. E.g., United States
v. Rodriguez, 660 F.3d 221, 233 (5th Cir. 2011).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20329    Document: 00511788146      Page: 2   Date Filed: 03/14/2012

                                  No. 11-20329

      Lucio can rebut the presumptive reasonabless of his sentence only by
showing that it: does not account for a factor that should receive significant
weight; gives significant weight to an irrelevant or improper factor; or represents
a clear error of judgment in balancing sentencing factors. United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Neither the age of the prior conviction
used to enhance Lucio’s sentence nor his cultural assimilation rebuts the
presumption. Rodriguez, 660 F.3d at 234-35. Further, the record reflects the
district court considered Lucio’s family’s mistaken belief that Lucio could stay
in this country, despite his illegal-reentry conviction, as a factor that weighed
against cultural assimilation, not as an aggravating factor, as Lucio suggests.
      AFFIRMED.




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