     Case: 12-50061       Document: 00512074031         Page: 1     Date Filed: 12/05/2012




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

                                                                            FILED
                                                                         December 5, 2012
                                     No. 12-50061
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE EVERADO LUNA-ESCOBEDO, also known as Jose Luna-Escobedo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2326-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to illegal reentry following deportation, Jose
Everado      Luna-Escobedo        appeals      his    within-Guidelines,        30-months’
imprisonment sentence.           Luna contends:         the sentence is substantively
unreasonable because it fails to reflect his cultural assimilation to the United
States, his benign motives for returning to the United States, the harsh
consequences of being an alien in prison, and the remoteness of his criminal
history; his sentence reflects an unwarranted sentencing disparity because 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-50061

could not participate in a fast-track program; and it is not presumptively
reasonable because the Guideline on which it was based, U.S.S.G. § 2L1.2, is
unsupported by empirical data.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      The district court considered and rejected Luna’s reasons for a more
lenient sentence. It determined a within-Guidelines sentence was appropriate,
especially in the light of Luna’s criminal history. Luna seeks to have our court
re-weigh the § 3553(a) sentencing factors.         But the fact that we “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
Obviously, “the sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant”. United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Thus, Luna has
not shown that his sentence was substantively unreasonable. See id. He also
has not rebutted the presumption of reasonableness that attaches to his
within-Guidelines sentence. E.g., United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008).
      Luna recognizes his contentions regarding fast-track disparities are
foreclosed in this circuit, see id. at 563 n.4, as are those regarding the lack of
empirical data concerning Guideline § 2L1.2, United States v. Duarte, 569 F.3d




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                               No. 12-50061

528, 529-31 (5th Cir. 2009). He raises them here only to preserve them for
possible future review.
      AFFIRMED.




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