     Case: 10-50318 Document: 00511368447 Page: 1 Date Filed: 02/01/2011




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

                                                 FILED
                                                                          February 1, 2011
                                     No. 10-50318
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

SERGIO GARRIGOS-DIAZ, also known as Ernesto Hernandez-Diaz, also known
as Sergio Girrigos-Diaz,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-805-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Sergio Garrigos-Diaz appeals the 41-month sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. On appeal, he raises two issues. First, he contends that an appellate
presumption of reasonableness should not apply to his within-guidelines
sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not supported
by empirical data. As Garrigos-Diaz concedes, this argument is foreclosed by


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50318 Document: 00511368447 Page: 2 Date Filed: 02/01/2011

                                  No. 10-50318

United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009), and United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008) (per curiam).
      Second, Garrigos-Diaz argues that his sentence is greater than necessary
to achieve the sentencing goals outlined in 18 U.S.C. § 3553(a) and is thus
substantively unreasonable because it fails to account for his history and
characteristics, his benign motive for returning to the United States, his efforts
at self-rehabilitation, and the remoteness of his attempted arson conviction. He
further argues that use of the remote arson conviction to impose a 16-level
enhancement under § 2L1.2(b)(1)(A)(ii) overstates the seriousness of both his
instant illegal reentry offense and the arson conviction and that a guidelines
anomaly permits classification of the arson conviction as a crime of violence for
purposes of the 16-level enhancement but prohibits application of the lesser
eight-level aggravated-felony enhancement under § 2L1.2(b)(1)(C).
      These arguments are likewise unavailing. Garrigos-Diaz has failed to
overcome    the   presumption     of   reasonableness    that   attaches   to   his
within-guidelines sentence on appellate review. See Duarte, 569 F.3d at 530-31.
His argument that the mitigating factors presented for the district court’s
consideration at sentencing should have been balanced differently is insufficient
to disturb the presumption. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008). Considering the totality of the circumstances, including
Garrigos-Diaz’s seven prior illegal reentry offenses and 10 other convictions, only
one of which was counted in the calculation of his criminal history, the district
court did not abuse its discretion in denying a downward variance or departure
and instead imposing a within-guidelines sentence. See Gall v. United States,
552 U.S. 38, 51 (2007).
      Regarding Garrigos-Diaz’s argument that a guidelines anomaly rendered
his sentence unreasonable, the Sentencing Guidelines recognize that certain
prior convictions may constitute one of the listed offenses under § 2L1.2(b)(1)(A)

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                                   No. 10-50318

but not an aggravated felony under § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)
and that, under these circumstances, “a downward departure may be
warranted.” See U.S.S.G. § 2L1.2, cmt. nn.3, 7. After reviewing Garrigos-Diaz’s
sentencing memorandum, considering the request and supporting arguments
made during the sentencing hearing for a below-guidelines sentence, and
engaging in a lengthy discussion with both defense counsel and Garrigos-Diaz,
the district court concluded that a sentence at the very bottom of the advisory
guidelines range was indicated. We will not vacate a within-guidelines sentence
merely because a district could have decided to impose a different sentence. See
Campos-Maldonado, 531 F.3d at 339 (“Appellate review is highly deferential as
the sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” (citing Gall, 552 U.S. at
51)).
         AFFIRMED.




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