     Case: 10-50214 Document: 00511293006 Page: 1 Date Filed: 11/15/2010




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

                                                 FILED
                                                                         November 15, 2010
                                     No. 10-50214
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS MEDINA VASQUEZ, also known as Jesus Rolando-Morales, also known
as Felix Rasso Vasquez, also known as Jesus Medina-Vasquez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-488-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jesus Medina Vasquez appeals his 96-month sentence imposed following
his guilty plea conviction for illegal reentry after removal, in violation of 8 U.S.C.
§ 1326. He argues that the presumption of reasonableness does not apply to his
within-guidelines sentence because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not supported by empirical data. Vasquez also argues that the
sentence is greater than necessary to meet the sentencing goals outlined in 18


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50214 Document: 00511293006 Page: 2 Date Filed: 11/15/2010

                                  No. 10-50214

U.S.C. § 3553(a).    He contends that the sentence fails to account for the
remoteness of his most serious offenses, fails to account for his lost opportunity
to serve his state and federal sentences concurrently, and overstates the
seriousness of his illegal reentry offense.
      As   Vasquez    concedes,   his   argument    that   the   presumption    of
reasonableness does not apply because § 2L1.2 is not empirically-based is
foreclosed by 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, 338-39 (5th Cir. 2008).
      Vasquez’s substantive reasonableness argument is likewise unavailing.
Vasquez’s arguments fail to overcome the presumption of reasonableness that
attaches to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31.
Vasquez’s 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).
      AFFIRMED.




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