     Case: 11-20545     Document: 00511835181         Page: 1     Date Filed: 04/25/2012




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

                                                                            FILED
                                                                           April 25, 2012
                                     No. 11-20545
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE REFUGIO PENA VALDEZ, also known as Jose Pena, also known as Joe
Pena, also known as Jose Refugio Pena-Valdez, also known as Jose Refugio
Pena,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-215-1


Before HIGGINBOTHAM, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        Jose Refugio Pena Valdez appeals the sentence imposed following his
guilty plea to illegal reentry. He argues that his within-guidelines sentence was
substantively unreasonable because the district court placed too much weight
on his criminal history, without weighing the mitigating factors of his cultural
assimilation, work history, and family circumstances.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20545    Document: 00511835181     Page: 2   Date Filed: 04/25/2012

                                  No. 11-20545

      We review the substantive reasonableness of Pena Valdez’s sentence for
an abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). A
sentence imposed within a properly calculated guidelines range is afforded a
presumption of reasonableness. United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008); see Rita v. United States, 551 U.S. 338, 347 (2007).
      Pena Valdez characterizes his criminal history as being overrepresented
because he received a 16-level enhancement and an additional four criminal
history points for crimes that occurred 20 years prior, when he was 18-years old.
The district court determined, however, that the nature of the crimes committed
when Pena Valdez was 18 had not been mitigated by the effect of time given that
his criminal history spanned 20 years and included recent convictions for violent
offenses. Additionally, the district court rejected Pena Valdez’s argument that
he returned illegally to the United States to make a better life for his children,
observing that he continued to commit crimes upon his reentry to the United
States, which behavior was inconsistent with “making a better life.”
      The district court’s decision to place more weight on Pena Valdez’s lengthy
criminal history than on his cultural assimilation and work history in the United
States was not error. See United States v. Hernandez, 633 F.3d 370, 375 (5th
Cir.), cert. denied, 131 S. Ct. 3006 (2011). Moreover, Pena Valdez’s mere
disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to a within-guidelines
sentence. See United States v. v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      Also, Pena Valdez argues that the presumption of reasonableness should
not apply to sentences calculated under U.S.S.G. § 2L1.2 because that Guideline
is not empirically based; however, he concedes that this argument is foreclosed
by United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009), and
he raises it only to preserve its further review.
      AFFIRMED.



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