     Case: 11-20186     Document: 00511747155         Page: 1     Date Filed: 02/03/2012




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

                                                                            FILED
                                                                         February 3, 2012
                                     No. 11-20186
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVID EDGAR HERNANDEZ VEGA, also known as David Edgar Hernandez,
also known as David Frank Hernandez Vega, also known as David Hernandez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-504-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        David Edgar Hernandez Vega challenges the sentence imposed following
his guilty-plea conviction for illegal reentry after being deported for a 2001
aggravated-felony conviction. The district court sentenced him, inter alia, to 46-
months’ imprisonment, within his advisory Sentencing Guidelines range. Vega
challenges only the substantive reasonableness of the sentence.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20186    Document: 00511747155      Page: 2    Date Filed: 02/03/2012

                                  No. 11-20186

      Review is for abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). Because Vega’s sentence was within his advisory Guidelines range, it is
presumptively reasonable. E.g., United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008). (And, as he concedes, but presents for possible future
review, Vega’s assertion that the presumption of reasonableness should not
apply to within-Guidelines sentences under Guideline § 2L1.2 because § 2L1.2
was not based on empirical evidence is foreclosed by our precedent. E.g., United
States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011)).
      Vega contends the district court failed to give adequate weight to his
cultural assimilation in the United States. The court considered Vega’s cultural-
assimilation contentions, but found that a sentence at the bottom of his
Guidelines range was appropriate. “[T]he sentencing judge is in a superior
position to find facts and judge their import under [18 U.S.C.] § 3553(a) with
respect to a particular defendant”. United States v. Campos-Maldonado, 531
F.3d 337, 339 (5th Cir. 2008). Vega has not shown sufficient reasons to disturb
the presumption of reasonableness given his sentence.
      Vega also contends the district court failed to consider adequately the time
between the instant conviction and his convictions as a teenager. Because he did
not raise this point in district court, review is for plain error only. E.g., United
States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011). In any event, “the
staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render [it] substantively unreasonable”.
Rodriguez, 660 F.3d at 234.
      AFFIRMED.




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