### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-51208 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. LEVER SANDER QUINTANILLA-SALGADO, Defendant-Appellant

A ppeal from the United States District Court for the Western District of Texas USDC No. 2:12-CR-466-1

Before JOLLY, DeMOSS, and ELROD, Circuit Judges. PER CURIAM: * Lever Sander Q u i ntanilla-Salgado a ppea l s f rom his within-guidelines sentence of 46 months of i mpri sonment and three years of supervised release following his g uilty plea conviction for illegal reentry into th e United States after deportation. He challenges the substantiv e reasonableness o f his sentence, arguing that his sentence is unreasonable because i t is greater than necessary to achieve the s entencing goals of 18 U.S.C. § 3553(a) and because it does not reflect his personal h istory and circumstances. He also a rgues that his s entence U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-51208 Document: 00512407028 Page: 1 Date Filed: 10/15/2013No. 12-51208

is unreasonable because the illegal reentry Guideline lacks an empiri c a l b a s is and d o u ble counts criminal h istory, and illeg a l r eentry essentially is a mere trespass offense. He concedes that his challenge to the lack of an e mpirical basis for the illegal reentry Gu i d e l i n e is foreclosed by United States v. MondragonSantiago , 564 F.3d 357, 366-67 (5th Cir. 2009). We review s entences for substantive reasonableness, in l i g h t of the § 3553(a) factors, under an a buse of discretion standard. G all v. United States , 552 U.S. 38, 49-51 (2007). A within-g u idelines sentence is entitled to a presumption o f reasonableness. See R ita v. United Sta t e s , 5 5 1 U.S. 338, 347 (2007). We h ave r ejected t he argument that illegal r eentry is m erely a trespass offense that is treated too harshly under U.S.S.G. § 2 L1.2. See U nited States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). Quintanilla-Salgado’s disagreement with the district court’s wei g h i n g of t he § 3553(a) factors is insufficient to rebut the presumption o f reasonableness tha t a ttaches to a within-guidelines sentence. See United States v. Cooks , 589 F.3d 173, 186 (5th C i r
. 2009). “ [T]he sentencing judge is i n a superior position to find fac t s a n d judge their i mport u nder § 3553(a) with respect to a particular defe n d a nt.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2 008). The fact that w e “might reasonably have c o nclu d e d t h a t a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall , 552 U.S. at 51. Quintanilla-Salgado h as not demonstrated that the district court abused its discretion by sentencing him t o a within-guidelines sentences of 46 months. See id. at 51. The judgment of the district court is AFFIRMED.

2 Case: 12-51208 Document: 00512407028 Page: 2 Date Filed: 10/15/2013