     Case: 11-20845     Document: 00512048375         Page: 1     Date Filed: 11/08/2012




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

                                                                            FILED
                                                                         November 8, 2012
                                     No. 11-20845
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CRISTOBAL ALBERTO GARCIA PENA, also known as Cristobal A. Garcia, also
known as Cristobal Alberto Garcia, also known as Cristobal Alberto Pena
Garcia, also known as Cristobal Alberto Garcia-Pena,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-759-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
        Cristobal Alberto Garcia Pena (Garcia) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. Garcia argues that his sentence was substantively
unreasonable. He maintains that his within-guidelines range sentence should
not be considered presumptively reasonable because U.S.S.G. § 2L1.2 is not


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20845    Document: 00512048375      Page: 2   Date Filed: 11/08/2012

                                  No. 11-20845

empirically based, but he acknowledges that this argument is foreclosed. He
further contends that the presumption of reasonableness has been rebutted
because the district court made a clear error of judgment in balancing the
sentencing factors. Garcia asserts that the sentence was greater than necessary
to meet the needs of sentencing under 18 U.S.C. § 3553(a) because it did not
sufficiently account for his cultural assimilation, the double counting of his
criminal history in both his offense level and criminal history category, and his
family circumstances. He argues that the district court did not give proper
weight to the mitigating factors he presented because it concentrated only on his
criminal history.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). As Garcia concedes, his argument that his within-guidelines range
sentence should not be considered presumptively reasonable because § 2L1.2 is
not empirically based is foreclosed. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009).     The fact that this court “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007). The
district court had before it both mitigating and aggravating factors. The district
court balanced these factors, and it determined that a sentence at the bottom of
the guidelines range was appropriate. We conclude there is no reason to disturb
the presumption of reasonableness in this case. See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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