     Case: 10-51060     Document: 00511558552         Page: 1     Date Filed: 08/02/2011




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

                                                                            FILED
                                                                           August 2, 2011
                                     No. 10-51060
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CARLOS SAENZ-RAMIREZ, also known as Carlos Augusto Saenz-Ramirez, also
known as Carlos Saenz Ramirez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-1909-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Carlos Saenz-Ramirez pleaded guilty to one count of attempted illegal
reentry, in violation of 8 U.S.C. § 1326, and one count of improper use of
another’s passport, in violation of 18 U.S.C. § 1544. The district court sentenced
him to 70 months in prison, within the guidelines range of 70 to 87 months.
Saenz-Ramirez challenges the substantive reasonableness of his sentence,
arguing that his sentencing range was greater than necessary to meet 18 U.S.C.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51060

§ 3553(a)’s goals of providing just punishment, that it overstated the seriousness
of his offense, and that it failed to take into account mitigating factors.
Specifically, Saenz-Ramirez argues that his offense of reentry was “at bottom,
an international trespass.” He continues that § 2L1.2 of the United States
Sentencing Guidelines places heavy emphasis on a prior conviction, counting it
for both criminal history and the 16-level enhancement. He also argues that his
disadvantaged background, prison record, cultural assimilation, and desire to be
with his family all mitigate the seriousness of his offense.
      We review sentences for reasonableness, employing a deferential abuse-of-
discretion standard, and we presume that a sentence within a properly
calculated guidelines range is reasonable. See Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert.
denied, 130 S. Ct. 1930 (2010). The purported double-counting and lack of
empirical basis for § 2L1.2 do not necessarily render a within-guidelines
sentence unreasonable. See, e.g., United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009). We likewise see no abuse of discretion in the court’s rejection of
Saenz-Ramirez’s contention that illegal reentry–a federal felony carrying
significant criminal penalties–is merely an international trespass, nor do we
discern any improper weighing of the other factors cited by Saenz-Ramirez,
including his personal history and characteristics. See Cooks, 589 F.3d at 186.
The district court considered Saenz-Ramirez’s arguments, the facts of the case,
and the appropriate statutory sentencing factors before concluding that a within-
guidelines sentence was appropriate. That determination is owed deference, and
Saenz-Ramirez’s disagreement with the district court’s assessment of those
factors is insufficient to rebut the presumption that the sentence is reasonable.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      As Saenz-Ramirez concedes, his contention that because § 2L1.2 is not
empirically based, the presumption of reasonableness should not apply, is
foreclosed.   See Duarte, 569 F.3d at 530-31; United States v. Mondragon-

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                                 No. 10-51060

Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). As he further concedes, his
argument that the lack of a “fast-track” disposition program in the Western
District of Texas creates an unwarranted sentencing disparity is also foreclosed.
See United States v. Gomez-Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).
      AFFIRMED.




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