     Case: 12-51118       Document: 00512331422         Page: 1     Date Filed: 08/05/2013




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

                                                                            FILED
                                                                           August 5, 2013
                                     No. 12-51118
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OSCAR EDUARDO DE LA CRUZ-DIAZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1687-1


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Oscar Eduardo De La Cruz-Diaz appeals the sentence imposed for his
conviction for illegal reentry into the United States. He contends that his
sentence is substantively unreasonable because it was greater than necessary
to accomplish the sentencing goals under 18 U.S.C. § 3553(a). The district court
sentenced him to 46 months of imprisonment, the bottom of his advisory
guidelines range.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51118    Document: 00512331422     Page: 2   Date Filed: 08/05/2013

                                 No. 12-51118

      The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because De La Cruz-Diaz’s sentence was within his advisory guidelines range,
his sentence is presumptively reasonable. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). De La Cruz-Diaz wishes to preserve for
further review the argument that the presumption of reasonableness should not
apply to within-guidelines sentences calculated under U.S.S.G. § 2L1.2 because
§ 2L1.2 lacks an empirical basis and double counts criminal history.          As
conceded by him, such an argument is foreclosed by our precedent. See United
States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011).
      De La Cruz-Diaz argues that the district court failed to adequately account
for his benign motive for returning to the United States and the unlikelihood
that he would return again now that his family has relocated to Mexico. He also
contends that his guidelines range was too severe because § 2L1.2 lacks an
empirical basis and effectively double counts a defendant’s criminal history
through enhancements, such as his crime-of-violence enhancement, that are
based on prior convictions.
      The district court listened to De La Cruz-Diaz’s arguments for a lesser
sentence but found that a 46-month sentence was appropriate.              “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). De La Cruz-Diaz has not
shown sufficient reason for this court to disturb the presumption of
reasonableness applicable to his sentence. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); Gomez-Herrera, 523 F.3d at 565-66.
      AFFIRMED.




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