IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51081

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ANTONIO SALAZAR ROCHA, also known as Jose Salazar-Rocha, also

known as Antonio Gaytan,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-1330-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Jose Antonio Salazar Rocha (Salazar) appeals from the sentences imposed

by the district court following his guilty-plea convictions of one count of

attempted illegal reentry and one count of fraud and misuse of visas, permits,

and other documents; the district court sentenced him within the applicable

guidelines range to 18 months of imprisonment on each count. He argues that

the sentences imposed are substantively unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

June 28, 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: 11-51081 Document: 00511903399 Page: 1 Date Filed: 06/28/2012
No. 11-51081

This court reviews sentences for reasonableness by engaging in a

bifurcated review. Gall v. United States, 552 U.S. 38, 51 (2007); United States

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we must ensure

that the sentencing court committed no significant procedural error. Gall, 552

U.S. at 51. If the district court’s sentencing decision is procedurally sound, we

review the substantive reasonableness of the sentence under an abuse of

discretion standard. Id. Because Salazar’s sentence falls within the applicable

guidelines range, it “is presumptively reasonable.” United States v. Alonzo, 435

F.3d 551, 554 (5th Cir. 2006). However, as he concedes, we review his sentence

only for plain error because he failed to object to it in the district court. See

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

This court has rejected Salazar’s arguments that sentences determined

under U.S.S.G. § 2L1.2 are unreasonable because § 2L1.2 is not empirically

grounded and because prior convictions may count toward both offense level and

criminal history category calculations. See United States v. Duarte, 569 F.3d

528, 529-31 (5th Cir. 2009). With regard to his contention that the district court

failed to account sufficiently for his particular circumstances in its 18 U.S.C.

§ 3553(a) analysis, he brought these circumstances to the attention of the district

court, and this court recognizes that “the sentencing judge is in a superior

position to find facts and judge their import under § 3553(a) with respect to a

particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339

(5th Cir. 2008). Whether or not we “might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall, 552 U.S. at 51. Finally, as Salazar concedes, his argument

that his inability to participate in a fast-track program creates an unwarranted

sentencing disparity is foreclosed by United States v. Gomez-Herrera, 523 F.3d

554, 562-64 (5th Cir. 2008). 

AFFIRMED.

2

Case: 11-51081 Document: 00511903399 Page: 2 Date Filed: 06/28/2012