     Case: 10-20712     Document: 00511571485         Page: 1     Date Filed: 08/15/2011




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

                                                                            FILED
                                                                          August 15, 2011
                                     No. 10-20712
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANDY JAVIER OSORIO OSORIO, also known as Andy Javier Osorio, also
known as Andy J. Osorio, also known as Andy Osorio, also known as Andy Javier
Osorio-Osorio,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-327-1


Before HIGGINBOTHAM, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Andy Javier Osorio Osorio pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326 and was sentenced to 27 months of
imprisonment and three years of supervised release.                   He challenges the
substantive reasonableness of his sentence, arguing that his sentence is
unreasonable because the district court failed to account for his lifelong mental


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20712    Document: 00511571485      Page: 2   Date Filed: 08/15/2011

                                  No. 10-20712

illness and its contribution to his criminal history and gave little or no weight
to the facts of his cultural assimilation.     Although Osorio challenges the
application of the appellate presumption of reasonableness to sentences imposed
under U.S.S.G. § 2L1.2, he correctly acknowledges that the issue is foreclosed by
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Before imposing a sentence within the advisory guideline range, the
district court heard the arguments of Osorio and his counsel concerning his
request for a sentence at the low end or below the guideline range based on his
mental illness and cultural assimilation. Osorio has not shown that the district
court’s balancing of these factors “represents a clear error of judgment.” See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct.
1930 (2010).     Accordingly, he has failed to rebut the presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Osorio has
shown no error with respect to the substantive reasonableness of his sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). Accordingly, the judgment of
the district court is AFFIRMED.




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