     Case: 12-50239       Document: 00512094596         Page: 1     Date Filed: 12/26/2012




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

                                                                            FILED
                                                                        December 26, 2012
                                     No. 12-50239
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE OSVALDO SANCHEZ-CASTILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2888-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jose Osvaldo Sanchez-Castillo was sentenced to a 46-month term of
imprisonment following his guilty plea to illegal reentry of a deported alien. See
8 U.S.C. § 1326. Sanchez-Castillo argues that his sentence, which is at the low
end of his advisory guidelines range of 46 to 57 months of imprisonment, is
unreasonable because it is greater than necessary as measured by the factors
identified in 18 U.S.C. § 3553(a).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50239      Document: 00512094596    Page: 2   Date Filed: 12/26/2012

                                  No. 12-50239

      As no assertion is made that the sentence imposed resulted from any
procedural error committed by the district court, we confine our review to
whether the sentence is substantively unreasonable under an abuse-of-discretion
standard. See Gall v. United States, 552 U.S. 38, 49-51 (2007). Sanchez-Castillo
argues that his sentence does not adequately take into account the
circumstances of his offense or his history. The district court at sentencing
considered the advisory guidelines range, Sanchez-Castillo’s objection to the
presentence report, his arguments in support of a variance from the advisory
guidelines range, his statement in allocution, and the factors identified in
§ 3553, determining that a 46-month sentence was appropriate. Thus, the record
reflects that the district court made an individualized determination at
sentencing based on the facts presented and in light of the § 3553(a) factors. See
Gall, 552 U.S. at 50.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see Rita v. United States, 551 U.S. 338, 347 (2007). Sanchez-Castillo
argues, for the purpose of preservation of the issue for possible further review
by the Supreme Court, that a sentence imposed under § 2L1.2 should not be
accorded that presumption because it is not empirically based and thus results
in an excessive sentence. As he concedes, however, his argument is foreclosed
by United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009), and United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Sanchez-Castillo has not shown that the district court failed to give proper
weight to his arguments or to any particular § 3553(a) factor. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He has thus failed to rebut the
presumption of reasonableness that is accorded his within-guidelines sentence.
See id.; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Accordingly, the district court’s judgment is AFFIRMED.



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