IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 sentence 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

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 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: 11-50940 Document: 00511866338 Page: 1 Date Filed: 05/24/2012
No. 11-50940

offense) double-counts a defendant’s criminal record; the advisory guidelines

sentencing range overstated the seriousness of his criminal history and

nonviolent reentry offense; and the range failed to account for his motive for

reentering–to seek treatment for his thyroid cancer. Chavez-Marquez further

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. 2005). Our court first

determines whether the district court committed any significant procedural

error; and, if not, the sentence is reviewed for substantive 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. 2011).

The district court considered Chavez-Marquez’s arguments for a lower

sentence but determined a 46-month within-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 particular 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 medical condition and motive for

reentry all justified a lower sentence–are insufficient to rebut the presumption

of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66

(5th Cir. 2008). 

AFFIRMED.

2

Case: 11-50940 Document: 00511866338 Page: 2 Date Filed: 05/24/2012