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 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.

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50843 Document: 00512564059 Page: 1 Date Filed: 03/18/2014
No. 13-50843

We review the substantive 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-Maldonado, 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 

represents 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 lacks an empirical basis, doublecounted 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-Duarte, 513 F.3d 204, 212 (5th Cir. 2008); United States v. AguirreVilla, 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 factors. 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 to 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 balanced 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.

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No. 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.

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