     Case: 12-50184       Document: 00512060997         Page: 1     Date Filed: 11/21/2012




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

                                                                            FILED
                                                                        November 21, 2012
                                     No. 12-50184
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GOROSTIETA, also known as Jorge Reyes-Garcia

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1099-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Jose Gorostieta appeals the 68-month within-guidelines sentence he
received following his guilty plea to illegal reentry into the United States after
deportation. Gorostieta 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 district court did not consider his benign motives for illegally reentering the
country or other mitigating circumstances, such as the fact that he needed to
take care of his wife and seven children or the fact that he committed a prior

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50184

burglary of a habitation offense merely to provide Christmas gifts for his
children. He further argues 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).
      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
§ 3553(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record
reflects that the district court considered the relevant § 3553(a) factors as well
as Gorostieta’s arguments for mitigating his sentence but explicitly overruled his
arguments and concluded that a within-guidelines sentence was appropriate.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly,
we decline Gorostieta’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).
      Furthermore, as he concedes, Gorostieta’s empirical data argument is
foreclosed by this court’s precedent. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. His
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

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                                 No. 12-50184

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).
      Gorostieta has not demonstrated that the district court abused its
discretion by sentencing him to a within-guidelines 68-month prison term. See
Gall, 552 U.S. at 51; Delgado-Martinez, 564 F.3d at 753. Accordingly, the
judgment of the district court is AFFIRMED.




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