     Case: 13-50848      Document: 00512691087         Page: 1    Date Filed: 07/09/2014




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

                                    No. 13-50848                                  FILED
                                  Summary Calendar                             July 9, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO GUTIERREZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1949-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Francisco Gutierrez-Garcia (Gutierrez) appeals the 44-month within-
guidelines sentence he received following his guilty plea to illegal reentry.
Gutierrez argues that his sentence is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a). He specifically contends that the
guidelines sentencing range was too severe in light of his difficult personal
history, his benign motives for returning, and his minimal criminal history.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50848     Document: 00512691087     Page: 2   Date Filed: 07/09/2014


                                  No. 13-50848

Additionally, Gutierrez asserts that his sentence is not entitled to a
presumption of correctness because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not empirically based, as it gives undue weight to a defendant’s prior
convictions.
      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). As he concedes, Gutierrez’s empirical data argument
is foreclosed by this court’s precedent. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). Furthermore, Gutierrez’s sentence, which is in the
middle of the applicable guidelines range, is presumed reasonable. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). His general disagreement
with the propriety of his sentence and the district court’s weighing of the
§ 3553(a) factors is insufficient to rebut the presumption of reasonableness that
attaches to a within-guidelines sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009); United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir. 2008).
      Gutierrez has not demonstrated that the district court abused its
discretion by sentencing him to a within-guidelines sentence of 44 months in
prison. See Gall, 552 U.S. at 51. Consequently, the judgment of the district
court is AFFIRMED.




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