### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-51088 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. GERARDO RIVAS-GOMEZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10-CR-1755-1

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Defendant-Appellant Gerardo Rivas-Gomez (Rivas) pleaded guilty to illegally reentering the Unite d States following deportation and received a within-guidelines sentence of 46 months in prison, to be followed by a three-year term of supervised release. On appeal, Rivas argues that the sentence imposed is substantively unreasonable because it is greater than necessary to satisfy the statutory sentencing goals of 18 U.S.C. § 3553(a). 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 Octob er 4, 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: 11-51088 Document: 00512009569 Page: 1 Date Filed: 10/04/2012No. 11-51088

We review sentences fo r s ub stantive reasonableness, in light of the § 3553(a) factors, under an abuse of discretion standard. Gall v. United States , 552 U.S. 3 8 , 4 9

- 51 (2007). If the district court imposes a sentence within a properly calculated guidelines range, the sentence is entitled to a rebuttable presumption of reasonableness. United States v. Newson , 515 F.3d 374, 379 (5th Cir. 2008). “The presumption is rebutted only on a s h o w i n g th at the sentence does not account for a factor that should receive significant w e ight, it gives significant weight to an irrelevant or i m p r oper 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). Rivas asserts that the appellate p re s u mp tion of reasonableness should not apply to his withi n - guidelines sentence because the illegal reentry Guideline, U.S.S.G. § 2 L 1 .2, was not developed through empirical study. He concedes, however, that this contention is foreclosed by United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). Rivas raises the question to preserve it for possible further review. In addition, Rivas complains that the guidelines range overstated the seriousness of his offense. He points to his benign reasons for returning to the United States. He also argues that his prior burglary conviction, which resulted in a 16-level enhancement, was too old to qualify for criminal history points and that if his sentencing had occurred one week later, he would have received only

a 12-level enhancement. Rivas maintains that the a ge of his burglary conviction, combined with his relatively m o d erate criminal history, warranted a sentence below the applicable guidelines range. The district court considered the factors asserted by Rivas and elected to impose a within-guidelines sentence. “[T]he staleness of a prior conviction used in the proper calculation of a guidelines-range sentence does not render a sentence substantiv e ly unreasonable and does not destroy the presumption of reasonableness that attaches to such sent e n c e s .” United States v. Rodriguez , 2 Case: 11-51088 Document: 00512009569 Page: 2 Date Filed: 10/04/2012No. 11-51088

660 F.3d 231, 234 (5th Cir. 2011). Rivas’s disagreement with the district court’s weighing of the applicable sentencing factors d o e s not show a “clear error of judgment in balancing sentencing fac t o r s” a nd thus does not overcome the presumption. Cooks , 589 F.3d at 186; see United States v. Gomez-Herrera , 523 F.3d 554, 565-66 (5th Cir. 2008). Consequently, the judgment of the district court is AFFIRMED.

3 Case: 11-51088 Document: 00512009569 Page: 3 Date Filed: 10/04/2012