     Case: 11-50183     Document: 00511647370         Page: 1     Date Filed: 10/27/2011




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

                                                                            FILED
                                                                         October 27, 2011
                                     No. 11-50183
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FILIBERTO FIGUEROA RIVERA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2719-1


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        Filiberto Figueroa Rivera appeals the 46-month concurrent sentences of
imprisonment imposed following his guilty plea convictions of illegal reentry of
the United States after deportation and false personation in immigration
matters. He contends that his within-guidelines sentence was greater than
necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and,
thus, it was substantively unreasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50183

      More specifically, Figueroa Rivera argues that the illegal reentry
guideline, U.S.S.G. § 2L1.2, is flawed because it lacks an empirical basis. He
contends that, by double counting his prior alien transportation offense, the
guidelines overstated the necessary sentence. He maintains that the guidelines
did not accurately reflect the seriousness of his illegal reentry offense, which he
characterizes as an international trespass. Finally, Figueroa Rivera argues that
the guidelines range failed to account for the circumstances of his offense and his
personal history. In this regard, he contends that his offense is mitigated by the
fact that he is a good and hardworking father who reentered the United States
because he missed his children.
      “A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). “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), cert. denied, 130 S. Ct. 1930
(2010). As Figueroa Rivera acknowledges, his contention that a presumption of
reasonableness should not apply to a sentence within the guideline range
because § 2L1.2 is not supported by empirical data is foreclosed. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009).
      Figueroa Rivera’s reliance on his good motive for reentering the United
States is insufficient to rebut the presumption of reasonableness, as are his
contentions that the illegal reentry guideline lacks an empirical basis and that
the guidelines overstate the seriousness of his offense. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).              “A defendant’s
disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to a within-guidelines

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                                No. 11-50183

sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Figueroa
Rivera has not rebutted the presumption of reasonableness. See Cooks, 589 F.3d
at 186.
      AFFIRMED.




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