     Case: 12-50069       Document: 00512083194         Page: 1     Date Filed: 12/13/2012




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

                                                                            FILED
                                                                        December 13, 2012
                                     No. 12-50069
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FELIPE VALENZUELA-SANCHEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2088-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Felipe Valenzuela-Sanchez (Valenzuela) appeals the within-guidelines,
concurrent 33-month sentences he received following his guilty plea to attempted
illegal reentry into the United States after deportation and misuse of a passport.
See 8 U.S.C. § 1326; 18 U.S.C. § 1544. Valenzuela argues that his sentence is
unreasonable. He specifically contends that the district court did not consider
that the illegal reentry sentencing guideline overstates the seriousness of the
offense, that he had a benign motive for illegally reentering the country, and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-50069

that he now had incentives to remain in Mexico after deporation. He further
argues that his sentence is not entitled to a presumption of reasonableness
because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not based on empirical
data or national experience.
      Generally, we review sentences for reasonableness in light of the
sentencing factors in 18 U.S.C. § 3553(a). United States v. Mondragon-Santiago,
564 F.3d 357, 360 (5th Cir. 2009). First, we consider whether the district court
committed a significant procedural error. Gall v. United States, 552 U.S. 38, 49-
51 (2007). If there is no error or the error is harmless, we review the substantive
reasonableness of the sentence imposed for an abuse of discretion. Id. at 51;
United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). Because
Valenzuela did not raise his substantive reasonableness argument in the district
court, we review for plain error only. See United States v. Peltier, 505 F.3d 389,
392 (5th Cir. 2007). Valenzuela acknowledges that, under current precedent, his
substantive reasonableness argument is subject to plain error review, but he
asserts that no objection was required because the reasonableness determination
is the unique province of the appellate courts. Valenzuela raises the issue to
preserve it for possible future Supreme Court review.
      When reviewing the reasonableness of a sentence within a properly
calculated guidelines range, we generally will infer that the district court
considered the sentencing factors set forth in the Sentencing Guidelines and
§ 3553(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record
reflects that the district court considered Valenzuela’s arguments for a lower
sentence but implicitly overruled his arguments and concluded that a within-
guidelines sentence was appropriate. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008). We decline Valenzuela’s invitation to reweigh the
§ 3553(a) factors because “the sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) with respect to a particular



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                                 No. 12-50069

defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
      As he concedes, Valenzuela’s empirical data argument is foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. His sentence, which is at
the bottom of the guidelines range, is presumed reasonable. See United States
v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008).           His general
disagreement with the propriety of his sentence and the district court’s weighing
of the § 3553(a) factors are insufficient to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. See United States
v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
      Valenzuela has not demonstrated that the district court plainly erred by
sentencing him to within-guidelines, concurrent 33-month prison terms. See
Gall, 552 U.S. at 51; Peltier, 505 F.3d at 392. Accordingly, the judgment of the
district court is AFFIRMED.




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