     Case: 13-50813       Document: 00512660063         Page: 1     Date Filed: 06/11/2014




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


                                     No. 13-50813
                                                                                 FILED
                                                                             June 11, 2014
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOEL GONZALEZ-RUIZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1700-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Joel Gonzalez-Ruiz appeals the sentence imposed following his guilty-
plea conviction for illegal reentry following deportation, in violation of 8 U.S.C.
§ 1326. He contends: although the sentence of 41-months’ imprisonment was
at the low end of the correctly-calculated, Sentencing Guidelines range of 41-
51 months, it was greater than necessary to achieve the sentencing goals of 18
U.S.C. § 3553(a). Along that line, Gonzalez maintains: because Guideline


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-50813     Document: 00512660063      Page: 2   Date Filed: 06/11/2014


                                  No. 13-50813

§ 2L1.2 (for illegal reentry) effectively double-counts a defendant’s criminal
record, the advisory Guidelines-sentencing range overstated the seriousness of
his non-violent offense, which he claims is only an international trespass. He
also contends the district court failed to account for his personal history and
circumstances, including his motive for returning to the United States
(working to pay for son’s surgery in Mexico) and his reduced risk of recidivism.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Gonzalez does not claim procedural error, but contends only that the sentence
imposed was substantively unreasonable.
      “A discretionary sentence imposed within a properly calculated
[G]uidelines [sentencing] range is presumptively reasonable.” United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Additionally, our court
will infer that, in selecting the sentence to be imposed, the district court
considered all of the relevant sentencing factors set forth in § 3553(a). See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).           Accordingly,
Gonzalez must show that his “sentence does not account for factors that should
receive significant weight, gives significant weight to irrelevant or improper
factors, or represents a clear error of judgment in balancing sentencing
factors”. United States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012).




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    Case: 13-50813     Document: 00512660063     Page: 3   Date Filed: 06/11/2014


                                  No. 13-50813

      Our court has rejected the oft-repeated claims that double-counting
necessarily renders a sentence unreasonable and that the Guidelines overstate
the seriousness of illegal reentry. United States v. Duarte, 569 F.3d 528, 529–
31 (5th Cir. 2009). Gonzalez also contends the within-Guidelines sentence
should not be afforded the presumption of reasonableness because Guideline
§ 2L1.2 lacks an empirical basis. He concedes our precedent forecloses this
contention, see United States v. Mondragon-Santiago, 564 F.3d 357, 366–67
(5th Cir. 2009), and raises it only for possible further review.
      “The sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) in the individual case.” Gall, 552 U.S. at 51
(citation and internal quotation marks omitted).        Here, the district court
specifically noted it considered the age of Gonzalez’ prior conviction in the
United States of aggravated discharge of a firearm, the medical condition of
Gonzalez’ son, and the lack of prior illegal reentry convictions; however, it
“counterbalanced” those facts with the nature of Gonzalez’ prior offense as it
related to the need for stating deterrence and protection of the public.
Notwithstanding the Government’s stating at sentencing that a sentence
below the Guidelines-sentencing range “might be appropriate”, the selection of
Gonzalez’ sentence was solely within the providence of the district court. Cf.
id. at 51–52 (explaining role of sentencing judge). Gonzalez, therefore, has
failed to rebut the above-referenced presumption of reasonableness applied to
this 41-month, within-Guidelines sentence.
      AFFIRMED.




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