IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50867

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER SOLIS-DIAZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-1155-1

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Javier Solis-Diaz (Solis) appeals the sentence

imposed by the district court following his guilty plea conviction of illegal reentry

into the United States following removal. He contends that his 70-month

sentence of imprisonment was greater than necessary to meet the goals of 18

U.S.C. § 3553(a). Noting that he has lived most of his life in the United States,

Solis asserts that, because of his cultural assimilation, he is less culpable than

the ordinary immigration offender. He also asserts that his motive for returning

United States Court of Appeals

Fifth Circuit

F I L E D

March 30, 2012

Lyle W. Cayce

Clerk

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: 11-50867 Document: 00511807245 Page: 1 Date Filed: 03/30/2012
No. 11-50867

to the United States—to be with his wife and children—is a mitigating

circumstance that weighs in favor of a sentence below the guideline range.

When, as here, the district court imposes a sentence within a properly

calculated guidelines range, the sentence is entitled to a presumption of

reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). To

rebut the presumption, the defendant must show that his sentence fails to take

into account a factor that should receive significant weight, gives significant

weight to an irrelevant or improper factor, or represents a clear error of

judgment in balancing the sentencing factors. United States v. Cooks, 589 F.3d

173, 186 (5th Cir. 2009). 

We give “great deference” to a sentence that falls within the pertinent

guidelines range and “will infer that the judge has considered all the factors for

a fair sentence set forth in the Guidelines” when such a sentence is imposed.

United State v. Mares, 402 F.3d 511, 519-20 (2005). Although cultural

assimilation can be a mitigating factor, nothing requires the district court to give

it “dispositive weight.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th

Cir. 2008). Solis’s benign reason for reentering the United States, even in

conjunction with his cultural assimilation, is insufficient to rebut the

presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d

554, 565-66 (5th Cir. 2008).

Solis also asserts that the appellate presumption of reasonableness should

not apply because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not

empirically based. He correctly acknowledges that this argument is foreclosed

by our precedent and states that he is raising it to preserve it for possible further

review. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

AFFIRMED.

2

Case: 11-50867 Document: 00511807245 Page: 2 Date Filed: 03/30/2012