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

                                                  FILED
                                                                         December 14, 2009
                                     No. 09-50360
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

SANTOS ORTIZ-ARRIAGA

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC 2:08-CR-490-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Santos Ortiz-Arriaga appeals the 60-month, guideline sentence imposed
following his guilty-plea conviction to illegal reentry, in violation of 8 U.S.C. §
1326.
        Ortiz maintains that his sentence, which includes a 16-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(B) because he was previously deported following a
drug trafficking conviction, is unreasonable in the light of the sentencing factors
of 18 U.S.C. § 3553(a). Specifically, he contends that the district court’s decision

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-50360

to sentence him within the guidelines range resulted in an excessive sentence
given the age of his prior convictions.         He also asserts:   his more serious
convictions were attributable to his cocaine use; and, after he stopped using
cocaine, his offenses were less serious. Further, Ortiz suggests the advisory
Sentencing Guidelines fail to account for his benign motive for committing the
instant offense: to care for his ill parents.
      In district court, although Ortiz raised several objections at sentencing, he
did not challenge the sentence as unreasonable. Arguably, our review should be
only for plain error. We need not address that question because his challenges
fail under our normal standard of review for issues raised at sentencing.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
      The district court made an individualized sentencing decision, based on
the facts of the case in the light of the factors set out in § 3553(a). See Gall, 552
U.S. at 49-50. The court’s conclusion that a within-guidelines sentence was
appropriate is entitled to deference, and we presume that it is reasonable. Id.
at 51; United States v. Newson, 515 F.3d 374, 379 (5th Cir.), cert. denied, 128 S.
Ct. 2522 (2008). It goes without saying that the court was in a superior position
to find facts and assess their import under § 3553(a). Gall, 552 U.S. at 51. We
see no reason to disturb the district court’s discretionary decision to impose a
sentence within the guidelines range.
      Ortiz also challenges the application of the appellate presumption of
reasonableness, claiming it should not apply because § 2L1.2 is not empirically

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                               No. 09-50360

based.   As he concedes, this assertion is foreclosed by United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 2009
WL 1849974 (Oct. 5, 2009) (No. 08-11099).
     AFFIRMED.




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