     Case: 12-50179       Document: 00512112959         Page: 1     Date Filed: 01/15/2013




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

                                                                            FILED
                                                                         January 15, 2013
                                     No. 12-50179
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PABLO BENITEZ-BENITEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1138-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to illegal reentry following deportation, Pablo
Benitez-Benitez appeals his within-guidelines sentence of 82 months of
imprisonment. He argues that the advisory guidelines range is unreasonably
high because it does not take into account: the lack of empirical basis underlying
U.S.S.G. § 2L1.2, on which the sentence was based; the remoteness of his prior
criminal activity; his motives for returning to the United States, which included
fear of the violence he faced in his home country; and the harsh consequences of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50179

being an alien in prison.       He also argues that his sentence reflects an
unwarranted sentencing disparity because he could not participate in a
fast-track program and that the sentence should not be afforded a presumption
of reasonableness because § 2L1.2 is unsupported by empirical data.
      Following United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines are advisory only, and a properly preserved objection to an ultimate
sentence is reviewed for reasonableness in light of the sentencing factors set
forth in 18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 51 (2007).
Nevertheless, the district court must still properly calculate the advisory
guidelines range for use in deciding the sentence to impose. Id. This court
reviews the district court’s interpretation and application of the Guidelines de
novo and its factual findings for clear error. See United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The district court considered and rejected Benitez’s reasons for a more
lenient sentence. It determined a within-guidelines sentence was appropriate,
especially in light of Benitez’s criminal history and the need to deter future
criminal activity. Benitez seeks to have this court re-weigh the § 3553(a) 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. “[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). Thus,
Benitez 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. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008).
      Benitez 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 underlying § 2L1.2, see United States v. Duarte, 569 F.3d 528,

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                                No. 12-50179

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




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