     Case: 15-50270   Document: 00513305248    Page: 1     Date Filed: 12/11/2015




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

                               No. 15-50270
                                                                          Fifth Circuit

                                                                        FILED
                             Summary Calendar                   December 11, 2015
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

                                   Plaintiff - Appellee

v.

DANIEL CRUZ-ZAVALA,

                                   Defendant - Appellant

_______________________________
Consolidated with
No. 15-50271

UNITED STATES OF AMERICA

                                   Plaintiff - Appellee

v.

JOSE FIDENCIO ZAVALA-ESTRADA

                                   Defendant - Appellant




                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:14-CR-779-1
                          USDC No. 2:14-CR-1438-1
     Case: 15-50270      Document: 00513305248         Page: 2    Date Filed: 12/11/2015


                                     No. 15-50270
                                   c/w No. 15-50271

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       In this consolidated criminal case, Daniel Cruz-Zavala, a/k/a Jose
Fidencio Zavala-Estrada (Cruz-Zavala) appeals the sentences imposed
following his being found illegally in the United States and revocation of his
supervised release. In the new illegal reentry case, the district court imposed
a 30-month term of imprisonment and a three-year period of supervised
release. For the supervised release violation, the district court required Cruz-
Zavala to serve a consecutive 18-month term of imprisonment with no
additional period of supervised release.             Cruz-Zavala contends that the
combined 48-month sentence of imprisonment is substantively unreasonable.
       A sentence imposed within a properly calculated sentencing guidelines
range is presumed to be reasonable, and we will infer that, in imposing such a
sentence, the judge “considered all the factors for a fair sentence set forth in
the Guidelines.” United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Although his sentences were within the guidelines range, Cruz-Zavala
contends that we should not presume that they were substantively reasonable
because the guideline applied by the district court is not empirically based. He
concedes that this contention is foreclosed and that he raises the issue only to
preserve it for further review. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 & n.7 (5th Cir. 2009).
       Cruz-Zavala’s complaint on appeal is essentially that his prior
convictions were double-counted unreasonably because they were considered
in determining his offense level for the new illegal reentry offense and for his


       * 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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    Case: 15-50270     Document: 00513305248     Page: 3   Date Filed: 12/11/2015


                                   No. 15-50270
                                 c/w No. 15-50271

criminal history score as well. This contention is foreclosed. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); see also United States v. Miller,
665 F.3d 114, 121 (5th Cir. 2011) (“[W]e will not reject a Guidelines provision
as ‘unreasonable’ or ‘irrational’ simply because it is not based on empirical data
and even if it leads to some disparities in sentencing.”).         Cruz-Zavala’s
contention that one prior conviction was improperly considered because of its
age is without merit. See United States v. Rodriguez, 660 F.3d 231, 234 (5th
Cir. 2011) (“[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.”).
      Cruz-Zavala has failed to rebut the presumption of reasonableness
accorded to his within-guidelines sentence. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). His claim that the sentence was not lenient
enough does not show that the sentence (1) did not account for a factor that
should receive significant weight, (2) gave significant weight to an irrelevant
or improper factor, or (3) reflected a clear error of judgment in balancing
sentencing factors. See id. We note that the district court made several
decisions that resulted in a more lenient sentence and stated that it would have
imposed the same sentence if it had sustained all of Cruz-Zavala’s objections.
      AFFIRMED.




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