IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 United 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).

United States Court of Appeals

Fifth Circuit

F I L E D

October 4, 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.

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No. 11-51088

We review sentences for substantive reasonableness, in light of the

§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,

552 U.S. 38, 49-51 (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 showing that the sentence

does not account for a factor that should receive significant weight, it gives

significant weight to an irrelevant or improper 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 presumption of reasonableness should not

apply to his within-guidelines sentence because the illegal reentry Guideline,

U.S.S.G. § 2L1.2, 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 age of his burglary conviction,

combined with his relatively moderate 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 substantively unreasonable and does not destroy the presumption of

reasonableness that attaches to such sentences.” United States v. Rodriguez,

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No. 11-51088

660 F.3d 231, 234 (5th Cir. 2011). Rivas’s disagreement with the district court’s

weighing of the applicable sentencing factors does not show a “clear error of

judgment in balancing sentencing factors” and 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.

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