     Case: 12-50086     Document: 00512009152         Page: 1     Date Filed: 10/04/2012




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

                                                                            FILED
                                                                          October 4, 2012
                                     No. 12-50086
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

VICTOR ALBERTO ORTIZ-RUIZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2410-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Victor Alberto Ortiz-Ruiz appeals his 57-month sentence for one count of
illegal reentry following a prior deportation. He contends: for several reasons,
his sentence, which is at the bottom of the applicable advisory Guidelines
sentencing range, is unreasonable.
        Although post-Booker, the Sentencing 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-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50086    Document: 00512009152      Page: 2    Date Filed: 10/04/2012

                                  No. 12-50086

sentencing range for use in deciding 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 claim Ortiz-Ruiz did not raise
in district court–that Guideline § 2L1.2 lacks an empirical basis and
impermissibly double-counts criminal history–is reviewed for plain error only.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Our court has consistently rejected the contention that Guideline § 2L1.2
(Guideline for unlawfully entering or remaining in United States) results in an
excessive sentence due to lack of an empirical basis and double-counting of a
prior offense. United States v. Duarte, 569 F.3d 528, 529 (5th Cir. 2009) (citing
two Fifth Circuit opinions rejecting both contentions). Ortiz-Ruiz acknowledges
this and presents this issue only to preserve it for possible further review.
      Ortiz-Ruiz’ assertion that he deserved a lesser sentence based upon the
disparity in “fast-track” early disposition programs is likewise foreclosed. United
States v. Gomez-Herrera, 523 F.3d 554, 563 n.4 (5th Cir. 2008); Duarte, 569 F.3d
at 531. He again presents it only for possible further review.
      Finally, his contention that his sentence is unreasonable due to mitigating
factors, such as his motive for re-entering the United States, also fails. The
record shows the district court, which is in the best position to make such
determinations, based its sentencing decision upon an individualized assessment
of the facts in the light of the 18 U.S.C. § 3553(a) sentencing factors. E.g., Gall,
552 U.S. at 51-53.
      A within-Guidelines sentence like Ortiz-Ruiz’ is entitled to a presumption
of reasonableness. E.g., United States v. Newson, 515 F.3d 374, 379 (5th Cir.
2008). Ortiz-Ruiz fails to rebut this presumption.
      AFFIRMED.



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