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

No. 11-50940 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. FACUNDO CHAVEZ-MARQUEZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-213-1

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges. PER CURIAM: * Facundo Chavez-Marquez appeals his 46-month s e ntence following his guilty-plea conviction for attempted illegal reentry after prior deportation and false personation in immigration matters. He maintains the sentence is substantively unreasonable because it is greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a). Chavez-Marquez contends: the guidelines range was too severe because Guideline § 2L1.2 (providing, inter alia, a 12-level enhancement for illegal reentry following a drug trafficking 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 May24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish 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 TH C IR

. R. 47.5 .4. Case: 11-50940 Document: 00511866338 Page: 1 Date Filed: 05/24/2012No. 11-50940

offens e) d o uble-counts a defendant’s criminal record; the advisory guidelines sente n cing range overstated the seriousness of his criminal history and nonviolent reentry offense; and the range failed to account for hi s m o tive for reentering–to seek treatment for his thyroid cancer. Chavez-Marquez f u rther argues that the advisory guidelines sentencing range was excessive because it failed to consider the disparity between defendants who, like him, cannot avail themselves of a “fast track” program and defendants in other districts who can avail themselves of such a program. As he acknowledges, the latter argument is foreclosed by United States v. Gomez-Herrera , 523 F.3d 554, 562-63 & n.4 (5th Cir. 2008). Following United States v. Booker , 543 U.S. 220 (2005), sentences are reviewed for reasonableness in the light of the sentencing factors in § 3553(a). United States v. Mares , 402 F.3d 511, 519-20 (5th Cir. 2 0 0 5 )

. Our court first determines whether the district court committed any significant procedural
error; and, if not, the sentence is reviewed for sub s t a ntiv e unreasonableness. Gall v. United States , 552 U.S. 38, 51 (2007). A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable. United States v. Rodriguez , 660 F.3d 221, 233 (5th Cir. 201 1). The district court considered Chavez-Marquez’s arguments for a lower sentence but determined a 46-month w ithin-guidelines sentence was appropriate. “[T]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) with respect to a parti c u lar defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). ChavezMarquez’s contentions–the double-counting of his prior drug conviction , the nonviolent nature of his offense, and his m e di cal condition and motive for reentry all justified a lower sentence–are insufficient to rebut the presumption of reasonableness. See United States v. Gomez

- H e rrera , 523 F.3d 554, 565-66 (5th Cir. 2008). AFFIRMED.
2 Case: 11-50940 Document: 00511866338 Page: 2 Date Filed: 05/24/2012