     Case: 11-50023     Document: 00511576186         Page: 1     Date Filed: 08/18/2011




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

                                                                            FILED
                                                                          August 18, 2011
                                     No. 11-50023
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS GERMAN GARCIA-FIERRO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-1753-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Luis German Garcia-Fierro (Garcia) pleaded guilty to one count of illegal
reentry in violation of 8 U.S.C. § 1326. The district court sentenced him to 46
months in prison, within the advisory sentencing guidelines range of 46 to 57
months. Garcia challenges the substantive reasonableness of his sentence,
arguing that his sentencing range was greater than necessary to meet 18 U.S.C.
§ 3553(a)’s goals of providing just punishment, that it overstated the seriousness
of his offense, and that it failed to take into account mitigating factors.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50023   Document: 00511576186      Page: 2   Date Filed: 08/18/2011

                                   No. 11-50023

Specifically, Garcia argues that his offense of reentry was “at bottom, an
international trespass.”      He continues that § 2L1.2 of the United States
Sentencing Guidelines places heavy emphasis on a prior conviction, counting it
for both criminal history and the 16-level enhancement. He also argues that his
reasons for reentry into and remaining in the United States mitigate the
seriousness of his offense.
      We review sentences for reasonableness, employing a deferential abuse-of-
discretion standard, and we presume that a sentence within a properly
calculated guidelines range is reasonable. See Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1930 (2010). The purported double-counting and lack of
empirical basis for § 2L1.2 do not necessarily render a within-guidelines
sentence unreasonable. See, e.g., United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009). We likewise see no abuse of discretion in the district court’s
rejection of Garcia’s contention that illegal reentry–a federal felony carrying
significant criminal penalties–is merely an international trespass, nor do we
discern any improper weighing of the other factors cited by Garcia, including his
personal history and characteristics. See Cooks, 589 F.3d at 186. The district
court considered Garcia’s arguments, the facts of the case, and the appropriate
statutory sentencing factors before concluding that a within-guidelines sentence
was appropriate.      That determination is owed deference, and Garcia’s
disagreement with the district court’s assessment of those factors is insufficient
to rebut the presumption that the sentence is reasonable. See United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      Additionally, as Garcia concedes, his argument that the lack of a “fast-
track” disposition program in the Western District of Texas creates an
unwarranted sentencing disparity is foreclosed. See United States v. Gomez-
Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).
      AFFIRMED.

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