### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 hi s guilty plea conviction of illegal reentry into the United States following removal. He contends that his 7 0

- m o nth sentence of imprisonment was greater than n e c essary 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 30 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50867 Document: 00511807245 Page: 1 Date Filed: 03/30/2012No. 11-50867

to the United States—to be with his wife and children—is a m iti g ating circumstance that weighs in favor of a sentence below the guideline range. When, as h e r e , the district court imposes a sentence within a properly calculated guidelines range, the sentence is entitled to a pre s u m p tion 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 shoul d receive significant weight, gives significant

w e i ght 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 f all s within the pertinent guidelines range and “will infer that the judge has considered all the factors for

a fair sentence set fo rth i n the Guidelines” when such a sentence is imposed. United State v. Mares , 402 F.3d 511, 519-2 0 ( 2 0 0 5). 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. 200 8)

. S o li s’s benign reason for reentering the United States, even in

c o njunction with his cultural assimilation, is insufficient to reb u t th e presumption of reasonableness. See United States v. Gomez-Herrera , 523 F.3d 554, 565-66 (5th Cir. 2008). Solis al s o a sserts 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. 2 009). AFFIRMED.

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