     Case: 09-50967     Document: 00511201144          Page: 1    Date Filed: 08/11/2010




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

                                                 FILED
                                                                           August 11, 2010
                                     No. 09-50967
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE ARISTONDO-MAGANA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-317-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Jose Aristondo-Magana (Aristondo) pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326. The district court sentenced Aristondo to 54 months
of imprisonment, which was within the guidelines imprisonment range of 46 to
57 months. Aristondo now appeals, arguing that his sentence, which includes
a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) (2008) because he was
previously deported following a crime of violence conviction, is unreasonably long
and greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a). He also

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50967    Document: 00511201144 Page: 2          Date Filed: 08/11/2010
                                 No. 09-50967

argues that the Guidelines that govern illegal reentry offenses lack an empirical
foundation and thus deprive his sentence of a presumption of reasonableness on
appeal.
      In Aristondo’s case, the district court made an individualized sentencing
decision based on the facts of the case in light of the factors set out in § 3553(a).
See Gall v. United States, 128 S. Ct. 586, 596 (2007).          The district court’s
conclusion that a within-guidelines sentence is appropriate is entitled to
deference, and we presume that it is reasonable. Id. at 597; United States v.
Newson, 515 F.3d 374, 379 (5th Cir. 2008). The district court was in a superior
position to find facts and assess their import under § 3553(a), Gall, 552 U.S. at
597-98, and we see no reason to disturb the district court’s discretionary decision
to impose a sentence within the guidelines range. Furthermore, as Aristondo
concedes, his argument that the appellate presumption of reasonableness is
inapplicable due to the lack of an empirical basis in the Guidelines governing
illegal reentry offenses is foreclosed. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
      AFFIRMED.




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