United States v. Jesus Vasquez

401 F. App'x 940

Opinion

PER CURIAM: *

Jesus Medina Vasquez appeals his 96-month sentence imposed following his guilty plea conviction for illegal reentry after removal, in violation of 8 U.S.C. § 1326. He argues that the presumption of reasonableness does not apply to his •within-guidelines sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not supported by empirical data. Vasquez also argues that the sentence is greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a). He contends that the sentence fails to account for the remoteness of his most serious offenses, fails to account for his lost opportunity to serve his state and federal sentences concurrently, and overstates the seriousness of his illegal reentry offense.

As Vasquez concedes, his argument that the presumption of reasonableness does not apply because § 2L1.2 is not empirically-based is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, — U.S. —, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.2008).

Vasquez’s substantive reasonableness argument is likewise unavailing. Vasquez’s arguments fail to overcome the presumption of reasonableness that attaches to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31. Vasquez’s argument that the mitigating factors presented for the district court’s consideration at sentencing should have been balanced differently is insufficient to disturb the presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.2008).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.