     Case: 13-51171      Document: 00512650524         Page: 1    Date Filed: 06/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 13-51171                                 FILED
                                  Summary Calendar                            June 3, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEDBAL QUINTANILLA-SAGASTIZADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:13-CR-1115-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jedbal Quintanilla-Sagastizado (Quintanilla) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to
57 months of imprisonment and three years of supervised release. Quintanilla
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51171    Document: 00512650524      Page: 2   Date Filed: 06/03/2014


                                  No. 13-51171

Guideline, U.S.S.G. § 2L1.2, is not empirically based and is therefore not
subject to the presumption of reasonableness normally due to within-guideline
sentences. He concedes that this argument is foreclosed by United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and United States v. Campos-
Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). He raises the argument to
preserve it for possible review by the Supreme Court. He further argues that
the guidelines range overstated the seriousness of the offense and failed to
account for his benign motive for reentering the country, his ties to this
country, and his cultural assimilation.
      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007).       A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption 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 he so concedes, Quintanilla’s argument that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 lacks
empirical support has been rejected by this court. See Duarte, 569 F.3d at 529-
31. Quintanilla’s argument concerning his benign motive for reentry fails to
rebut the presumption of reasonableness. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008).         Quintanilla’s argument that the
Guidelines overstate the seriousness of his criminal history likewise fails to
rebut the presumption of reasonableness. See United States v. Rodriguez, 523
F.3d 519, 526 (5th Cir. 2008).



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                                No. 13-51171

      The district court heard the arguments of Quintanilla’s counsel
concerning his reasons for reentering the United States before imposing a
sentence within the advisory guidelines range. The district court considered
Quintanilla’s personal history and characteristics and the other statutory
sentencing factors in § 3553(a) prior to imposing the sentence. Quintanilla’s
disagreement with the district court’s weighing of the § 3553(a) factors is
insufficient to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence. See Cooks, 589 F.3d at 186.
      Quintanilla has not demonstrated that the district court abused its
discretion by sentencing him to a within-guidelines sentence of 57 months. See
Gall, 552 U.S. at 51. The judgment of the district court is AFFIRMED.




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