     Case: 12-20153       Document: 00512133451         Page: 1     Date Filed: 02/04/2013




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

                                                                            FILED
                                                                         February 4, 2013
                                     No. 12-20153
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ALBERTO MERINO CRUZ, also known as Alberto Merino, also known as
Alberto Merino-Cruz, also known as Alberto Cruz Merino,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-671-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Alberto Merino Cruz pleaded guilty to being found illegally present in the
United States after deportation. With an advisory Guideline-sentencing range
of 57 to 71 months’ imprisonment, Defendant received credit for a month spent
in immigration custody and was sentenced to an additional 56 months.
Contesting that sentence as substantively unreasonable, Defendant contends the
district court erred in balancing the 18 U.S.C. § 3553(a) sentencing 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20153     Document: 00512133451       Page: 2   Date Filed: 02/04/2013

                                   No. 12-20153

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect,
its application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Defendant
does not claim procedural error. As noted, he contests only the reasonableness
of his within-Guidelines sentence.
      Regarding that issue, Defendant asserts the court failed to account for
factors that should have received significant weight, including his self
rehabilitation and age at the time of most of his prior convictions; and, it
weighted too heavily other factors, including the nature of those convictions and
the corresponding, advisory Guidelines sentencing range.               The court’s
statements at sentencing, however, focused on Defendant’s repeated
deportations and long-term illegal presence in the United States.             These
statements implicate several § 3553(a) factors, including Defendant’s criminal
history and the need for the sentence to reflect the seriousness of the offense,
promote respect for the law, and afford adequate deterrence. 18 U.S.C.
§ 3553(a)(1), (a)(2)(A)-(B).
      A properly calculated, within-Guidelines sentence is presumptively
reasonable, United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and “the
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). For the reasons
discussed above, Defendant’s contention fails.
      AFFIRMED.



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