     Case: 11-51019     Document: 00511884283         Page: 1     Date Filed: 06/12/2012




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

                                                                            FILED
                                                                           June 12, 2012
                                     No. 11-51019
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SEBASTIAN RODRIGUEZ-FAVELA, also known as Raul Rios,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-1468-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Sebastian Rodriguez-Favela (Rodriguez) appeals the 54-month sentence
imposed following his guilty plea conviction for illegal reentry into the United
States after deportation, in violation of 8 U.S.C. § 1326. Rodriguez argues that
his within-guidelines sentence is substantively unreasonable because it is
greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C.
§ 3553(a). He contends that the applicable guidelines sentencing range is too
severe because U.S.S.G. § 2L1.2 lacks an empirical basis and because his prior

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51019     Document: 00511884283    Page: 2   Date Filed: 06/12/2012

                                   No. 11-51019

conviction for an aggravated felony increased both his offense level and his
criminal history score. He further argues that his illegal reentry offense was
mitigated by his personal characteristics and history and that those factors were
not adequately taken into account by the Sentencing Guidelines or the district
court.
         Rodriguez argues that a presumption of reasonableness should not be
applied to his within-guidelines sentence because § 2L1.2 is not empirically
based. He concedes that this argument is foreclosed, see United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009), but he raises the issue to preserve it for
further review.
         We previously have rejected the argument, which Rodriguez now makes
on appeal, that § 2L1.2’s purported empirical flaws and double-counting of
previous convictions necessarily render a sentence unreasonable. See id. We
reasoned that courts need not undertake “a piece-by-piece analysis of the
empirical grounding behind each part of the sentencing guidelines.” Id. at 530.
Although a district court has the discretion to consider such a policy-based
argument in making its determination, it is not required to do so. See id. at
530-31.
         In addition, the record reflects that the district court heard the same
mitigation arguments Rodriguez raises in his brief in this court and considered
those arguments before selecting the 54-month sentence imposed here.
Rodriguez’s “disagreement with the propriety of the sentence imposed does not
suffice to rebut the presumption of reasonableness that attaches to [his]
within-guidelines sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir.
2010). Rodriguez has failed to show that his sentence either failed to account for
a factor that should have received significant weight or represented a clear error
of judgment in balancing the sentencing factors. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
         The judgment of the district court is AFFIRMED.

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