     Case: 11-50293     Document: 00511700252         Page: 1     Date Filed: 12/19/2011




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

                                                                            FILED
                                                                        December 19, 2011
                                     No. 11-50293
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GUADALUPE PICHARDO-SANCHEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:11-CR-4-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Guadalupe Pichardo-Sanchez (Pichardo)
appeals the sentence imposed following his guilty plea conviction for being
unlawfully present in the United States following removal. Pichardo claims that
his prior Texas conviction for sexual assault of a child was not for a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He asserts that the sentence was
substantively unreasonable, contending that his within-guidelines range
sentence should not be considered presumptively reasonable because § 2L1.2 is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50293

not empirically based. He further urges that the presumption of reasonableness
has been rebutted by the district court’s clear error of judgment in balancing the
sentencing factors and that the sentence was greater than necessary to meet the
needs of sentencing under 18 U.S.C. § 3553(a) because (1) it did not account for
his favorable personal history and characteristics, (2) it was based on a double
counting of his criminal history, (3) his current offense was victimless and not
inherently evil, (4) his prior conviction was not as serious as other offenses that
would receive 16-level enhancements, and (5) his benign motive for returning to
the United States mitigated the seriousness of his offense. Pichardo also insists
that the sentence was greater than necessary to deter further criminal conduct
or protect the public, noting that he had not previously served a sentence longer
than two years and that a lesser period of incarceration is sufficient to deter a
defendant who has not previously served a long sentence.
      As Pichardo concedes, his position that his prior Texas conviction for
sexual assault of a child was not a conviction for a crime of violence under
§ 2L1.2(b)(1)(A)(ii) is foreclosed. See United States v. Castro-Guevarra, 575 F.3d
550, 552-53 (5th Cir. 2009). Also, his contention that his within-guidelines range
sentence should not be considered presumptively reasonable because § 2L1.2 is
not empirically based is foreclosed as well. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009).
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). The fact that we “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall v. United States, 552 U.S. 38, 51 (2007). The district court had before it
both mitigating and aggravating factors, balanced these factors, and determined
that a sentence at the bottom of the guidelines range was appropriate. We
conclude that there is no reason to disturb the presumption of reasonableness



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                                 No. 11-50293

in this case. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008).
      AFFIRMED.




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