     Case: 11-51150     Document: 00511931424         Page: 1     Date Filed: 07/24/2012




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

                                                                            FILED
                                                                            July 24, 2012
                                     No. 11-51150
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GONZALEZ-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1617-1


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jose Gonzalez-Martinez appeals the sentence imposed for his conviction
for illegal reentry into the United States. His advisory guidelines range was 46
to 57 months of imprisonment and included a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because he was previously removed from the
United States after having been convicted of a crime of violence (COV), namely
a 1994 California conviction for robbery. The district court sentenced him to 56
months of imprisonment and three years of supervised release. Gonzalez-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51150

Martinez contends that his sentence is substantively unreasonable. He does not
challenge his sentence for procedural error.
      The substantive reasonableness of a sentence ordinarily is reviewed under
an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
If, however, a defendant failed to object in the district court to the
reasonableness of his sentence, we will review the issue for plain error only. See
United States v. Ruiz, 621 F.3d 390, 394, 398 (5th Cir. 2010).          Although
Gonzalez-Martinez concedes that plain error review applies under our precedent,
he wishes to preserve for further review the issue “whether a failure to object to
the reasonableness of a sentence upon its imposition requires plain error
review.” Regardless of whether plain error review applies, Gonzalez-Martinez’s
challenge on appeal is unavailing because his sentence did not constitute an
abuse of discretion by the district court, as discussed below.
      Because Gonzalez-Martinez’s sentence was within his advisory guidelines
range, his sentence is presumptively reasonable.          See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The presumption of
reasonableness “is rebutted only upon 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). Gonzalez-Martinez also wishes to preserve for further
review the argument that the presumption of reasonableness should not apply
to within-guidelines sentences calculated under § 2L1.2 because § 2L1.2 places
an undue emphasis on a defendant’s criminal history in setting his offense level.
As conceded by him, such an argument is foreclosed by our precedent. See
United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011).
      Gonzalez-Martinez, who was born in 1975, argues that his sentence is
unreasonable because the 16-level COV enhancement was assessed based on a
conviction that was too old to receive any criminal history points and that took

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                                  No. 11-51150

place when he was only 19 years old. This argument is not persuasive, as “the
staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does         not render a sentence substantively
unreasonable.” Rodriguez, 660 F.3d at 234.
      Gonzalez-Martinez further contends that the guidelines range failed to
reflect his personal history and characteristics, including his cultural
assimilation, and overstated the seriousness of his instant illegal reentry offense.
The district court listened to Gonzalez-Martinez’s arguments for a lesser
sentence but found that a sentence near the top of his guidelines range was
appropriate. “[T]he sentencing judge is in a superior position to find facts and
judge their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Gonzalez-Martinez has not shown sufficient reason for this court to
disturb the presumption of reasonableness applicable to his sentence. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); § 2L1.2, comment.
(n.8). His history of convictions and his instant illegal reentry into the United
States only 15 days after having been removed support the district court’s
decision not to vary or depart downward. His within-guidelines sentence was
not an abuse of discretion.
      AFFIRMED.




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