     Case: 14-50164      Document: 00512863535         Page: 1    Date Filed: 12/09/2014




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

                                    No. 14-50164
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       December 9, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JOSE LUIS MARTINEZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-1828


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Luis Martinez-Garcia pleaded guilty to a single count of illegal
reentry after removal, in violation of 8 U.S.C. § 1326.               The district court
imposed a sentence of 42 months of imprisonment, which was within the
applicable sentencing guidelines range.                On appeal, Martinez-Garcia
challenges the substantive reasonableness of his sentence, arguing that it is
greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50164

      As an initial matter, Martinez-Garcia contends that the applicable
guidelines provision, U.S.S.G. § 2L1.2, is not empirically based and, therefore,
his sentence should not be subject to a presumption of reasonableness.
However, he concedes that this argument is foreclosed. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      Because Martinez-Garcia objected in the district court, we review for
substantive reasonableness under an abuse of discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). A within-guidelines sentence is entitled
to a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). “The 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).
      The district court heard and considered Martinez-Garcia’s arguments at
sentencing, including his claims of cultural assimilation, his new-found
understanding of the possible penalties, and his mother’s willingness to move
to Mexico. However, it also considered Martinez-Garcia’s criminal history, the
violent nature of some of his prior convictions, and his repeated violations of
prior terms of probation. Martinez-Garcia’s disagreement with the district
court’s weighing of the § 3553(a) factors is insufficient to rebut the presumption
of reasonableness that attaches to a within-guidelines sentence. See Cooks,
589 F.3d at 186.
      The parties have noted a conflict between the oral and written sentences
and request that we modify the written judgment to agree with the oral
sentence. The district court’s oral sentence imposed a two-year term of non-
reporting supervised release, but its written judgment imposed a three-year



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                                No. 14-50164

term of non-reporting supervised release. We conclude that the better course
is to remand to the district court for the limited purpose of correcting the
written judgment. See United States v. Wheeler, 322 F.3d 823, 828 (5th Cir.
2003).
      Accordingly, the judgment of the district court is AFFIRMED in part, the
motion to modify the judgment is DENIED, and this case is REMANDED for
the limited purpose of correcting the written judgment to conform with the oral
sentence.




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