     Case: 12-50369       Document: 00512101824         Page: 1     Date Filed: 01/04/2013




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

                                                                            FILED
                                                                          January 4, 2013
                                     No. 12-50369
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

JUAN CARLOS VERDUGO,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2752-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Carlos Verdugo challenges the substantive reasonableness of the
46-month within-Guidelines sentence imposed following his guilty plea
conviction of illegal reentry.
       Because Verdugo’s sentence falls within the applicable Guidelines range,
it “is presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007) (upholding the
application of the presumption of reasonableness to sentences within a properly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50369     Document: 00512101824      Page: 2    Date Filed: 01/04/2013

                                  No. 12-50369

calculated Guidelines range). Furthermore, Verdugo concedes that his failure
to object to the substantive reasonableness of his sentence in the district court
results in plain error review. United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).
      This court has rejected Verdugo’s arguments that sentences determined
under section 2L1.2 of the Guidelines are unreasonable because section 2L1.2
is not empirically grounded and because prior convictions may count toward both
offense-level and criminal-history-category calculations. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).          With regard to Verdugo’s
contention that the district court failed to account sufficiently for his particular
circumstances in its 18 U.S.C. § 3553(a) analysis, he brought these
circumstances to the attention of the district court, and this court recognizes
that “the 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) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). Whether 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. Verdugo has shown no error, plain or
otherwise.
      AFFIRMED.




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