     Case: 11-51088     Document: 00512009569         Page: 1     Date Filed: 10/04/2012




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

                                                                            FILED
                                                                          October 4, 2012
                                     No. 11-51088
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERARDO RIVAS-GOMEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1755-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Gerardo Rivas-Gomez (Rivas) pleaded guilty to
illegally reentering the United States following deportation and received a
within-guidelines sentence of 46 months in prison, to be followed by a three-year
term of supervised release. On appeal, Rivas argues that the sentence imposed
is substantively unreasonable because it is greater than necessary to satisfy the
statutory sentencing goals of 18 U.S.C. § 3553(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-51088

      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). If the district court imposes a sentence within a
properly calculated guidelines range, the sentence is entitled to a rebuttable
presumption of reasonableness. United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008). “The presumption is rebutted only on a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      Rivas asserts that the appellate presumption of reasonableness should not
apply to his within-guidelines sentence because the illegal reentry Guideline,
U.S.S.G. § 2L1.2, was not developed through empirical study. He concedes,
however, that this contention is foreclosed by United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). Rivas raises the question to preserve it for possible
further review.
      In addition, Rivas complains that the guidelines range overstated the
seriousness of his offense. He points to his benign reasons for returning to the
United States. He also argues that his prior burglary conviction, which resulted
in a 16-level enhancement, was too old to qualify for criminal history points and
that if his sentencing had occurred one week later, he would have received only
a 12-level enhancement. Rivas maintains that the age of his burglary conviction,
combined with his relatively moderate criminal history, warranted a sentence
below the applicable guidelines range.
      The district court considered the factors asserted by Rivas and elected to
impose a within-guidelines sentence. “[T]he staleness of a prior conviction used
in the proper calculation of a guidelines-range sentence does not render a
sentence substantively unreasonable and does not destroy the presumption of
reasonableness that attaches to such sentences.” United States v. Rodriguez,

                                         2
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                                 No. 11-51088

660 F.3d 231, 234 (5th Cir. 2011). Rivas’s disagreement with the district court’s
weighing of the applicable sentencing factors does not show a “clear error of
judgment in balancing sentencing factors” and thus does not overcome the
presumption. Cooks, 589 F.3d at 186; see United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008). Consequently, the judgment of the district
court is AFFIRMED.




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