     Case: 13-50836      Document: 00512623388         Page: 1    Date Filed: 05/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 13-50836                                   FILED
                                  Summary Calendar                              May 8, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAMIR GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1690-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Samir Garcia pleaded guilty to unlawfully reentering the United States
in violation of 8 U.S.C. § 1326(a), (b)(2). Garcia was subject to an advisory
guidelines imprisonment range of 46 to 57 months.                   The district court’s
guidelines calculation rested in part on a 16-level increase in Garcia’s offense
level, which increase was predicated on his 2012 conviction for aggravated
battery. The district court sentenced Garcia within the applicable guidelines


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-50836

range to 57 months of imprisonment and a three-year term of supervised
release. Garcia filed a timely notice of appeal.
      On appeal, Garcia maintains that his sentence is unreasonable,
contending that it is greater than necessary to meet the sentencing goals of 18
U.S.C. § 3553(a) in light of the mitigating factors presented by his case. More
specifically, he asserts that his sentence failed to reflect that his family faced
severe hardship in Honduras, that he returned to the United States to support
his family, that he earned a 16-level increase for a conviction that also
increased his criminal history score, that his offense is non-violent in nature,
that this is his first conviction for illegal reentry, and that the 57-month
sentence imposed is three times longer than his longest previous sentence. He
also asserts that the district court placed too much emphasis on his prior
convictions in selecting a sentence.
      We review the substantive reasonableness of a sentence by examining
the totality of the circumstances under an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Mondragon-Santiago,
564 F.3d 357, 360 (5th Cir. 2009). Although Garcia raises the issue to preserve
it for further review, he concedes that his within-guidelines sentence enjoys a
presumption of substantive reasonableness. United States v. Tuma, 738 F.3d
681, 695 (5th Cir. 2013), petition for cert. filed (Mar. 19, 2014) (No. 13-1152).
That “presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir.2009). Garcia has not made this showing.
      The record reflects that the district court conducted an individualized
assessment of an appropriate sentence based on the facts presented, as it was



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                                  No. 13-50836

required to do under Gall, 552 U.S. at 50, and decided that a 57-month
sentence was appropriate. That Garcia or this court “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51. Considering the totality of
the circumstances presented in this case in light of the § 3553(a) factors, we
perceive no abuse of discretion in the district court’s conclusion that a top-of-
the-guidelines sentence was appropriate here. See id.; Mondragon-Santiago,
564 F.3d at 360.       Accordingly, we conclude that Garcia’s sentence is
substantively reasonable, and we affirm the judgment of the district court.
      AFFIRMED.




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