     Case: 14-50698      Document: 00513045150         Page: 1    Date Filed: 05/15/2015




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

                                    No. 14-50698                                   FILED
                                  Summary Calendar                             May 15, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MACEDONIO AGUIRRE-LOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-1435-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Macedonio Aguirre-Loza appeals his within-guidelines sentence of 50
months of imprisonment, imposed upon his guilty plea conviction for illegal
reentry into the United States following deportation. See 8 U.S.C. § 1326(a),
(b)(2). As in the district court, he challenges the substantive reasonableness of
his sentence and argues that it was greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a)(2).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50698      Document: 00513045150      Page: 2   Date Filed: 05/15/2015


                                  No. 14-50698

      Aguirre-Loza’s      discretionary,       within-guidelines    sentence      is
presumptively reasonable. See United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). Aguirre-Loza argues that we should not apply the
presumption of reasonableness to his sentence that was calculated under
U.S.S.G. § 2L1.2 because the guideline is not based on empirical data. He
recognizes, however, that his claim is foreclosed by circuit precedent and raises
the issue in order to preserve it for further review. See United States v. Duarte,
569 F.3d 528, 529-30 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366 (5th Cir. 2009). Additionally, Aguirre-Loza avers that his
sentence fails to reflect his personal history and characteristics, specifically,
the fact that he returned to the United States to earn money to pay for his
mother’s surgery. See § 3553(a)(1). The record at sentencing, uncontroverted
by other evidence, “implies that the district court was aware of and considered
the § 3553(a) factors.” United States v. Izaguirre-Losoya, 219 F.3d 437, 440
(5th Cir. 2000).     Aguirre-Loza has failed to overcome the presumption of
reasonableness that attaches to his sentence. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009).
      As to the sentence, Aguirre-Loza contends that it and the guidelines on
which it is based overrepresent the seriousness of his illegal reentry offense,
which is essentially only an international trespass offense. We previously have
rejected this challenge. See United States v. Juarez-Duarte, 513 F.3d 204, 212
(5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006). We have similarly declined to adopt the view that § 2L1.2 double
counts prior convictions by using them to calculate both criminal history and
the offense level. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009).




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                                 No. 14-50698

      As to Aguirre-Loza’s arguments that his sentence is greater than
necessary to promote the § 3553(a)(2) factors, these essentially seek a re-
weighing of those factors as applied to the facts of his case. “[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). That we “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007).
Aguirre-Loza has failed to show that his sentence is substantively
unreasonable. See Gall, 552 U.S. at 51. The decision of the district court is
AFFIRMED.




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