### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 50843 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ANTONIO DURAN

- OLVERA , Defendant

- Appellant
Appeal from the United States District Court for the Western District of Texas USDC No. 2:13

- CR

- 329

- 1

Before JOLLY, DeMOSS, and ELROD, Circuit Judges. PER CURIAM: * Antonio Duran

- Olvera appeals the within

- guidelines, 46

- month sentence imposed for his guilty plea conviction of illegal reentry. He contends that his sentence is substantively unreasonable because it is greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors.

* Pursuant to 5 TH C IR
. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 18, 2014 Lyle W. Cayce Clerk Case: 13-50843 Document: 00512564059 Page: 1 Date Filed: 03/18/2014No. 13

- 50843
We review the sub stantive reasonableness of a sentence for an abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). “ A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable .” United States v. Campos

- Maldon ado , 531 F.3d 337, 338 (5th Cir. 2008). “ The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represe nts a clear error of judgment in balancing sentencing factors. ” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Duran

- Olvera’s arguments that his sentence is substantively unreasonable because U.S.S.G. § 2L1.2 lack s an empirical basis , double

c ount ed his prior conviction in the calculation of the offense level and criminal history score , and overstates the seriousness of illegal reentry are unavailing. See United States v. Duarte , 569 F.3d 528, 529

- 31 (5th Cir. 2009) ; United States v. Juarez

- Dua rte , 513 F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre

Villa , 460 F.3d 681, 683 (5th Cir. 2006). The district court was aware of the impact of Duran

- Olvera ’s prior conviction on the calculation of the guidelines range and his other mitigating fa ctors . However, the district court imposed a sentence at the bottom of the guidelines range because Duran

- Olvera evinced a lack of respect for the law by illegally reentering the United States shortly after he had been removed

. Duran

- Olvera has failed t o show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made a clear error of judgment when it balanc ed the relevant factors. Cooks , 589 F.3d at 186. He has thus failed to rebut the presumption of reasonableness that we apply to his within

- guidelines sentence. See Campos

- Maldonado , 531 F.3d at 338.

2 Case: 13-50843 Document: 00512564059 Page: 2 Date Filed: 03/18/2014No. 13

- 50843
As Duran

- Olvera concedes, his argument that the presumption of reasonableness should not be applied to his sentence because § 2L1.2 lacks an empirical basis is foreclosed. See Duarte , 569 F.3d at 530

- 31; United States v. Mondragon

- Santiago , 564 F.3d 357, 366

- 67 (5th Cir. 2009). The judgment of the district court is AFFIRMED.

3 Case: 13-50843 Document: 00512564059 Page: 3 Date Filed: 03/18/2014