     Case: 15-51176      Document: 00513610866         Page: 1    Date Filed: 07/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51176
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 27, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RUBEN VALDEZ-CORRAL, also known as Ruben Martinez-Velazquez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:15-CR-1492-1


Before REAVLEY, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Ruben Valdez-Corral appeals a 70-month within-guidelines sentence
imposed following his convictions for attempted illegal reentry and for fraud
and misuse of visas or permits. Valdez-Corral challenges the substantive
reasonableness of his sentence. He argues that his guidelines range was too
high because U.S.S.G. § 2L1.2 is not empirically based and contains offense
levels that were established in a “problematic manner.” In particular, he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51176

challenges the weight given to a prior drug conviction because it was used both
to enhance his offense level by 16 under § 2L1.2(b)(1)(A) and to calculate his
criminal history score. Additionally, he argues that his sentence overstated
the seriousness of his nonviolent illegal reentry offense and failed to reflect his
personal history and characteristics.
      Because Valdez-Corral did not object to the reasonableness of his
sentence in the district court, review is limited to plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).       Although he makes this
concession, Valdez-Corral seeks to preserve the issue of whether the failure to
object to the reasonableness of a sentence upon its imposition requires plain-
error review.
      Within-guidelines sentences are presumed to be reasonable.           United
States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). Valdez-
Corral contends that his within-guidelines sentence should not be presumed
reasonable because § 2L1.2 lacks an empirical basis. However, as he concedes,
this issue is foreclosed. See id. at 365-67. Additionally, this court has rejected
his argument that double-counting his prior drug conviction in both his offense
level and his criminal history score necessarily renders his sentence
unreasonable. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.
2009). This court also has not been persuaded by the argument that the
Guidelines fail to account for the nonviolent nature of an illegal reentry
offense. United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      The district court considered the arguments that Valdez-Corral raised at
sentencing regarding his personal history and characteristics and determined
that a 70-month sentence was appropriate in light of his criminal history,
which involved nine different convictions; his prior removal from the United
States on three separate occasions; and the drug-related nature of his prior



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                                  No. 15-51176

convictions. “[T]he sentencing judge is in a superior position to find facts and
judge their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).   Valdez-Corral’s disagreement with the propriety of his within-
guidelines sentence does not rebut the presumption that his sentence was
reasonable. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). He
has not shown sufficient reason for this court to disturb the presumption of
reasonableness applicable to his sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Thus, he has failed to establish that the district court
committed plain error.
      Accordingly, the district court’s judgment is AFFIRMED.




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