     Case: 10-50091     Document: 00511258846          Page: 1    Date Filed: 10/08/2010




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

                                                 FILED
                                                                           October 8, 2010
                                     No. 10-50091
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAUL ARVID CANTU, also known as Victor Alarcon,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:09-CR-27-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Raul Arvid Cantu appeals his 37-month sentence imposed following his
guilty plea conviction for illegal reentry after removal, in violation of 8 U.S.C.
§ 1326. He argues that the presumption of reasonableness does not apply to his
within-guidelines sentence because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not supported by empirical data. Cantu also argues that the sentence
is greater than necessary to meet the sentencing goals outlined in 18 U.S.C.
§ 3553(a). He contends that a sentence below the guidelines is sufficient because

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50091   Document: 00511258846 Page: 2        Date Filed: 10/08/2010
                                No. 10-50091

the 16-level enhancement was based on a 25-year old conviction; his personal
belongings were stolen from his apartment after his arrest; and he was
rehabilitated.
      As Cantu concedes, his argument that the presumption of reasonableness
does not apply because § 2L1.2 is not empirically-based is foreclosed by United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.
2008).
      Cantu’s substantive reasonableness argument is likewise unavailing.
Cantu’s arguments fail to overcome the presumption of reasonableness that
attaches to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31.
Furthermore, Cantu’s belief that the mitigating factors presented for the district
court’s consideration at sentencing should have been balanced differently is
insufficient to disturb the presumption. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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