     Case: 11-50780     Document: 00511859828         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-50780
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN JOSE NAVA-MEDINA, also known as Henry Rivera,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-1020-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Juan Jose Nava-Medina (Nava) appeals the 46-month sentence he received
after he pleaded guilty to being illegally present in the United States after
removal. He contends that his within-guidelines sentence was substantively
unreasonable because it was greater than necessary to satisfy the sentencing
goals of 18 U.S.C. § 3553(a). Because Nava’s arguments fail under either a plain
error or an abuse of discretion standard of review, we need not decide whether,
despite his arguments in the district court in support of a downward variance,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50780    Document: 00511859828      Page: 2   Date Filed: 05/17/2012

                                  No. 11-50780

Nava’s failure to object to the reasonableness of his sentence results in plain
error review.
      As Nava concedes, his contention that a sentence imposed under U.S.S.G.
§ 2L1.2 is not entitled to a presumption of reasonableness is foreclosed. See
United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir.), cert. denied, 130 S. Ct.
378 (2009). We have rejected the argument that the illegal reentry guideline’s
alleged lack of an empirical basis and alleged double-counting of previous
convictions renders a sentence unreasonable. See id. Nava’s reliance on his
allegedly benign motive for reentering the United States is insufficient to rebut
the presumption of reasonableness. See United States v. Gomez-Herrera, 523
F.3d 554, 565–66 (5th Cir. 2008). Likewise, to the extent Nava contends that the
sentence imposed by the district court was unreasonable because it failed to
account for his cultural assimilation into the United States, he fails to show
reversible error. See United States v. Rodriguez, 660 F.3d 231, 234–35 (5th Cir.
2011).
      On the whole, Nava’s arguments are a request to re-weigh the § 3553(a)
factors. “[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 this court
“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). “A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence.” United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010). Nava neither has shown that his sentence was
substantively unreasonable nor has he rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence.
      AFFIRMED.



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