     Case: 12-50385       Document: 00512139274         Page: 1     Date Filed: 02/08/2013




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

                                                                            FILED
                                                                         February 8, 2013
                                     No. 12-50385
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CESAR MANUEL CRUZ-RASCON, also known as Cesar Cruz-Razon,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-3046-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Cesar Manuel Cruz-Rascon (Cruz) was sentenced to a 46-month term of
imprisonment following his guilty plea to illegal reentry following removal. See
8 U.S.C. § 1326.          Cruz argues that his within-guidelines sentence is
unreasonable because it is greater than necessary to accomplish the sentencing
goals of 18 U.S.C. § 3553(a). He contends that the Sentencing Guidelines failed
to account for the nonviolent nature of his illegal reentry offense and his benign



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50385     Document: 00512139274     Page: 2   Date Filed: 02/08/2013

                                  No. 12-50385

motives for reentry and that his cultural assimilation and his inability to obtain
fast-track relief rebut any presumption of reasonableness that may apply.
      Because Cruz does not challenge the procedural reasonableness of his
sentence, this court’s review is limited to a consideration of the substantive
reasonableness of the sentence. See Gall v. United States, 552 U.S. 38, 49-51
(2007); United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). This court
need not determine whether plain error review is appropriate because Cruz’s
arguments are unavailing even under the abuse-of-discretion standard. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      Cruz’s 46-month sentence is within the properly calculated guidelines
range of 46 to 57 months of imprisonment and is accorded a rebuttable
presumption of reasonableness. See United States v. Newson, 515 F.3d 374, 379
(5th Cir. 2008); Rita v. United States, 551 U.S. 338, 347 (2007).            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). As Cruz acknowledges, his argument that the
presumption of reasonableness should not be applied to a sentence calculated
under U.S.S.G. § 2L1.1 because the Guideline is not empirically grounded is
foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      The district court made an individualized assessment to determine
whether a sentence within the guidelines range was sufficient but not greater
than necessary to achieve the goals of § 3553(a). See Gall, 552 U.S. at 50. Cruz’s
argument that his inability to obtain fast-track relief rebuts the presumption of
reasonableness is unavailing. See United States v. Gomez-Herrera, 523 F.3d 554,
562-64 (5th Cir. 2008). This court has rejected the argument that the Guidelines
overstate the seriousness of illegal reentry because it is a nonviolent

                                        2
    Case: 12-50385    Document: 00512139274     Page: 3   Date Filed: 02/08/2013

                                 No. 12-50385

international trespass offense. United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006).
      Cruz has not shown that his sentence does not account for a factor that
should receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing sentencing
factors. See Cooks, 589 F.3d at 186. Mere “disagreement with the propriety of
the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence.” United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Because Cruz has not shown error,
plain or otherwise, the judgment of the district court is AFFIRMED.




                                       3
