     Case: 10-51015 Document: 00511485791 Page: 1 Date Filed: 05/23/2011




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

                                                 FILED
                                                                            May 23, 2011
                                     No. 10-51015
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE JESUS CERVANTES-RANGEL,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1517-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Jesus Cervantes-Rangel (Cervantes) appeals the 57-month sentence
imposed following his guilty plea conviction for being found illegally in the
United States following removal.            He contends that the within-guidelines
sentence was greater than necessary to satisfy the sentencing goals set forth in
18 U.S.C. § 3553(a) and was, therefore, substantively unreasonable. Cervantes
specifically argues that U.S.S.G. § 2L1.2 is not empirically based and the
guidelines sentence does not merit a presumption of reasonableness.                        He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-51015 Document: 00511485791 Page: 2 Date Filed: 05/23/2011

                                      No. 10-51015

maintains that his offense constitutes a mere international trespass and that the
guidelines range failed to reflect his personal history and characteristics,
including his benign motive for reentering the United States (to pay his respects
to his deceased girlfriend of many years) and the age of his prior drug
convictions.1
       This court reviews the sentence for reasonableness, under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Where, as in
this case, the district court imposes a sentence within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
       The contention that a defendant is entitled to relief because § 2L1.2 is not
supported by empirical data has been rejected by this court. United States v.
Duarte, 569 F.3d 528, 530 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). This
court has also determined that the “international trespass” argument raised by
Cervantes does not justify disturbing an otherwise presumptively reasonable
sentence. United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
       The sentencing transcript reveals that the district court carefully made an
individualized sentencing decision based on the facts of the case in light of the
factors set out in § 3553(a). See Gall, 552 U.S. at 49-50. The district court’s
conclusion that a within-guidelines sentence is appropriate is entitled to
deference, and we presume that it is reasonable. See id. at 51-52; United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010);
Newson, 515 F.3d at 379.         We see no reason to disturb the district court’s




       1
          Cervantes further asserts that his sentencing range was unreasonable because the
district court did not consider the unwarranted sentencing disparity between defendants
sentenced in the Western District of Texas, which does not have a fast track program, and
defendants sentenced in districts that do have such a program. However, he concedes that
this issue is foreclosed by our precedent. United States v. Gomez-Herrera, 523 F.3d 554, 563
(5th Cir. 2008).

                                             2
    Case: 10-51015 Document: 00511485791 Page: 3 Date Filed: 05/23/2011

                               No. 10-51015

discretionary decision to impose a sentence within the guidelines range.
Consequently, the judgment of the district court is AFFIRMED.




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