IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50318

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

SERGIO GARRIGOS-DIAZ, also known as Ernesto Hernandez-Diaz, also known

as Sergio Girrigos-Diaz,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-805-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Sergio Garrigos-Diaz appeals the 41-month sentence imposed following his

guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C.

§ 1326. On appeal, he raises two issues. First, he contends that an appellate

presumption of reasonableness should not apply to his within-guidelines

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

by empirical data. As Garrigos-Diaz concedes, this argument is foreclosed by

United States Court of Appeals

Fifth Circuit

F I L E D

February 1, 2011

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: 10-50318 Document: 00511368447 Page: 1 Date Filed: 02/01/2011
No. 10-50318

United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct.

378 (2009), and United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.

2008) (per curiam).

Second, Garrigos-Diaz argues that his sentence is greater than necessary

to achieve the sentencing goals outlined in 18 U.S.C. § 3553(a) and is thus

substantively unreasonable because it fails to account for his history and

characteristics, his benign motive for returning to the United States, his efforts

at self-rehabilitation, and the remoteness of his attempted arson conviction. He

further argues that use of the remote arson conviction to impose a 16-level

enhancement under § 2L1.2(b)(1)(A)(ii) overstates the seriousness of both his

instant illegal reentry offense and the arson conviction and that a guidelines

anomaly permits classification of the arson conviction as a crime of violence for

purposes of the 16-level enhancement but prohibits application of the lesser

eight-level aggravated-felony enhancement under § 2L1.2(b)(1)(C).

These arguments are likewise unavailing. Garrigos-Diaz has failed to

overcome the presumption of reasonableness that attaches to his

within-guidelines sentence on appellate review. See Duarte, 569 F.3d at 530-31.

His argument that the mitigating factors presented for the district court’s

consideration at sentencing should have been balanced differently is insufficient

to disturb the presumption. See United States v. Gomez-Herrera, 523 F.3d 554,

565-66 (5th Cir. 2008). Considering the totality of the circumstances, including

Garrigos-Diaz’s seven prior illegal reentry offenses and 10 other convictions, only

one of which was counted in the calculation of his criminal history, the district

court did not abuse its discretion in denying a downward variance or departure

and instead imposing a within-guidelines sentence. See Gall v. United States,

552 U.S. 38, 51 (2007).

Regarding Garrigos-Diaz’s argument that a guidelines anomaly rendered

his sentence unreasonable, the Sentencing Guidelines recognize that certain

prior convictions may constitute one of the listed offenses under § 2L1.2(b)(1)(A)

2

Case: 10-50318 Document: 00511368447 Page: 2 Date Filed: 02/01/2011
No. 10-50318

but not an aggravated felony under § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)

and that, under these circumstances, “a downward departure may be

warranted.” See U.S.S.G. § 2L1.2, cmt. nn.3, 7. After reviewing Garrigos-Diaz’s

sentencing memorandum, considering the request and supporting arguments

made during the sentencing hearing for a below-guidelines sentence, and

engaging in a lengthy discussion with both defense counsel and Garrigos-Diaz,

the district court concluded that a sentence at the very bottom of the advisory

guidelines range was indicated. We will not vacate a within-guidelines sentence

merely because a district could have decided to impose a different sentence. See

Campos-Maldonado, 531 F.3d at 339 (“Appellate review is highly deferential as

the sentencing judge is in a superior position to find facts and judge their import

under § 3553(a) with respect to a particular defendant.” (citing Gall, 552 U.S. at

51)).

AFFIRMED.

3

Case: 10-50318 Document: 00511368447 Page: 3 Date Filed: 02/01/2011