     Case: 11-50940     Document: 00511866338         Page: 1     Date Filed: 05/24/2012




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

                                                                            FILED
                                                                           May 24, 2012
                                     No. 11-50940
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FACUNDO CHAVEZ-MARQUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-213-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Facundo Chavez-Marquez appeals his 46-month sentence following his
guilty-plea conviction for attempted illegal reentry after prior deportation and
false personation in immigration matters.               He maintains the sentence is
substantively unreasonable because it is greater than necessary to accomplish
the sentencing goals set forth in 18 U.S.C. § 3553(a). Chavez-Marquez contends:
the guidelines range was too severe because Guideline § 2L1.2 (providing, inter
alia, a 12-level enhancement for illegal reentry following a drug trafficking

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50940   Document: 00511866338     Page: 2   Date Filed: 05/24/2012

                                 No. 11-50940

offense) double-counts a defendant’s criminal record; the advisory guidelines
sentencing range overstated the seriousness of his criminal history and
nonviolent reentry offense; and the range failed to account for his motive for
reentering–to seek treatment for his thyroid cancer. Chavez-Marquez further
argues that the advisory guidelines sentencing range was excessive because it
failed to consider the disparity between defendants who, like him, cannot avail
themselves of a “fast track” program and defendants in other districts who can
avail themselves of such a program. As he acknowledges, the latter argument
is foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 562-63 & n.4 (5th
Cir. 2008).
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in the light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Our court first
determines whether the district court committed any significant procedural
error; and, if not, the sentence is reviewed for substantive unreasonableness.
Gall v. United States, 552 U.S. 38, 51 (2007). A discretionary sentence imposed
within a properly calculated guidelines range is presumptively reasonable.
United States v. Rodriguez, 660 F.3d 221, 233 (5th Cir. 2011).
      The district court considered Chavez-Marquez’s arguments for a lower
sentence but determined a 46-month within-guidelines sentence was
appropriate. “[T]he 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). Chavez-
Marquez’s contentions–the double-counting of his prior drug conviction, the
nonviolent nature of his offense, and his medical condition and motive for
reentry all justified a lower sentence–are insufficient to rebut the presumption
of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008).
      AFFIRMED.

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