     Case: 11-20804     Document: 00511934649         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                            July 26, 2012
                                     No. 11-20804
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LOUIS ALBERTO GONZALEZ-BELLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-386-1


Before WIENER, ELROD and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Louis Alberto Gonzalez-Bello (Gonzalez) pleaded
guilty to being illegally present in the United States following deportation
subsequent to an aggravated felony conviction. The district court determined
that a sentence at the bottom of the applicable guideline range was appropriate,
and imposed a sentence that took into account the one-month period that
Gonzalez was in the custody of Immigration and Customs Enforcement.
Gonzalez appeals the 40-month sentence of imprisonment, claiming that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20804    Document: 00511934649      Page: 2    Date Filed: 07/26/2012

                                  No. 11-20804

district court committed procedural error by failing to explain sufficiently its
reasons for rejecting his request for a downward variance from the applicable
guideline sentencing range.        He also contends that the sentence was
substantively unreasonable.
      Our review begins with the question whether the district court committed
“significant procedural error,” such as failing to adequately explain the sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). If there is no procedural error, we
will consider the substantive reasonableness of the sentence under an
abuse-of-discretion standard. Id.
      “The sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority. Nonetheless, when a judge
decides simply to apply the Guidelines . . . , doing so will not necessarily require
lengthy explanation.”     Rita v. United States, 551 U.S. 338, 356-57 (2008)
(internal citation omitted). When a party “presents nonfrivolous reasons for
imposing a [non-Guidelines range] sentence, however, the judge will normally
go further and explain why he has rejected those arguments.” Id. at 357.
      The record shows that the district court heard Gonzalez’s arguments for
a sentence below the guideline range. The district court stated, however, that
it had determined that a sentence at the bottom of the guideline range was
adequate to sanction Gonzalez’s criminal conduct and to satisfy the sentencing
factors of 18 U.S.C. § 3553(a). The district court’s explanation of the sentence
imposed, while brief, was legally sufficient. See id. at 358-59; United States v.
Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Gonzalez has not shown
reversible procedural error.
      When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).



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   Case: 11-20804   Document: 00511934649      Page: 3   Date Filed: 07/26/2012

                                  No. 11-20804

To the extent that Gonzalez contends that a presumption of reasonableness
should not apply to a sentence calculated under the illegal reentry guideline
because the guideline is not empirically based, his argument, as he
acknowledges, is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d
357, 367 (5th Cir. 2009).
      Gonzalez attempts to rebut the presumption of reasonableness, asserting
that the sentence represents a clear error of judgment in balancing the
sentencing factors. He notes in this regard that the record shows that he had
reunited with his wife, who was the victim of his prior offense; that he had
become a devoted father; and that he was supporting his children. He contends
that he has led an exemplary life, that the sentence did not take into account his
history and characteristics, and that the sentence gave significant and undue
weight to the seriousness of his offense.
      Gonzalez essentially seeks to have his sentence vacated based on a
reweighing of the § 3553(a) factors on appeal. “[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, 552 U.S. at 51. Gonzalez’s disagreement with the propriety
of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to the within-guidelines sentence imposed by the
district court. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008).
AFFIRMED.




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