     Case: 11-51118     Document: 00511960197         Page: 1     Date Filed: 08/17/2012




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

                                                                            FILED
                                                                          August 17, 2012
                                     No. 11-51118
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALEXANDER HERRERA-ITZEP,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1618-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Alexander Herrera-Itzep appeals the 55-month within-guidelines sentence
he received following his guilty plea to illegal reentry into the United States
after deportation. Herrera-Itzep argues that his sentence is greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He specifically
contends that the guidelines sentencing range was too severe because the
district court (1) gave too much weight to a previous conviction for aggravated
assault with intent to commit rape, (2) did not consider the mitigating

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51118    Document: 00511960197      Page: 2    Date Filed: 08/17/2012

                                  No. 11-51118

circumstances surrounding the aggravated assault conviction, and (3) did not
consider his benign motive for illegally reentering the country. He further
contends that his sentence is not entitled to a presumption of reasonableness
because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not empirically based.
      Generally, we review sentences for reasonableness in light of the
sentencing factors in § 3553(a). United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). First, we consider whether the district court committed
a significant procedural error. Gall v. United States, 552 U.S. 38, 49-51 (2007).
If there is no error or the error is harmless, we review the substantive
reasonableness of the sentence imposed for an abuse of discretion. Id. at 51;
United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). However,
because Herrera-Itzep did not raise his substantive reasonableness argument
in the district court, we review for plain error only. See United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007).
      When reviewing the reasonableness of a sentence within a properly
calculated guidelines range, we generally will infer that the district court
considered the sentencing factors set forth in the Sentencing Guidelines and
§ 3353(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record
reflects that the district court expressly considered the relevant § 3553(a) factors
as well as Herrera-Itzep’s arguments for mitigating his sentence but expressly
overruled his arguments and concluded that a within-guidelines sentence was
“appropriate” considering the circumstances of the case. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline Herrera-
Itzep’s invitation to reweigh the § 3553(a) factors because “the 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).
      As he concedes, Herrera-Itzep’s empirical data argument is foreclosed by
this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th

                                         2
  Case: 11-51118    Document: 00511960197     Page: 3   Date Filed: 08/17/2012

                                 No. 11-51118

Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. Furthermore, Herrera-
Itzep’s sentence, which is near the top of the guidelines range, is presumed
reasonable. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.
2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors are insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Herrera-Itzep has not demonstrated that the district court plainly erred
by sentencing him to a within-guidelines 55-month prison term. See Gall, 552
U.S. at 51; Peltier, 505 F.3d at 392. Accordingly, the judgment of the district
court is AFFIRMED.




                                       3
