### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50934 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. FELIPE SOSA-NUNEZ, also known as Albert Duran, also known as Phillip Sosa-Nunez, also known as Albert Duran Huero, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-875-1

Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Felipe Sosa-Nunez appeals t h e 3 0 -month within-guidelines sentence he received following his guilty plea to illegal reentry into the United States after deportation. Sosa-Nunez argues that his sentence is greater than necessary to meet the sentencing goals of 18 U .S.C. § 3553(a). He specifically contends that the district court failed to adequately c o nsider his benign motives f or returning, his personal characteristics, or the fact that his illegal reentry offense was a nonU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 13, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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violent crime. He further contends that the sentence imposed is not entitled to

a presumption o f reasonableness because the illegal reentry Guideline, U.S.S.G. § 2L1.2, is not empirically based. Generally, we r eview sentences for reasonableness i n light of the sentencing f

actors in § 3553(a). United States v . Mondragon-Santiago , 564 F.3d 357, 360 (5th Cir. 2009). First, we consider whether the district court committed

a significant procedural error. Gall v. United States , 5 52 U.S. 38, 4 9-51 (2007). I f there is no error or the error is h armless, we review the s ubstanti v e reasonableness of the sentence imposed for a n abuse of discre t i on. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). H owever, because Sosa-Nunez did not raise his s ubstantive reasonableness argument in the di s trict cou r t , w e r e v i ew for plain error only. See United States v. Peltier , 505 F.3d 389, 392 (5th Cir. 2007). When reviewing the reasonableness o f a sente n ce within a p roperly

c a l c u l ated guidelines range, we generally will infer that the district court considered the sentencing factors set forth i n the Sentencing Guidelines and § 3353(a). United States v. Mares , 402 F.3d 5 11, 519 ( 5th Cir. 2005). The record reflects that the district court expressly considered the relevant § 3553(a) factors

as w ell as Sosa-N u n e z ’ s arguments for mitigating his sentence but implicitly overruled h is arguments and concluded that a within-guidelines s entence was adequate, fair, and reasonable. See United State s v . R o d r iguez , 523 F.3d 519, 525 (5th Cir. 2008). Moreover, we have previously rejected the argument that

a guidelines sentence under § 2L1.2 is u nreasonable because illegal reentry is,

as Sosa-Nunez puts it, merely a trespassing offense and not a crime o f violence. See Un i t e d S t a tes v . A guirre-Villa , 460 F.3d 6 81, 683 (5th Cir. 2006). Accordingly, we decline Sosa-Nunez’s invitation to reweigh the § 3553(a) factors because “the s entencing judge is in a supe r i o r position to find facts and judge their i m p o r t u nder § 3553(a) with respect to a particular defendant.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008).
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Furthermore, Sosa-Nunez’s empirical data argument is foreclosed by this court’s prec e d e n t

. Se e United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago , 564 F.3d at 366-67 n.7. His sentence, which is at the top of the properly calculated guidelines r ange, is presumed r e asonable. See United States v. Cisneros-Gutierrez , 517 F.3d 751, 766 (5th Cir. 2 008). His general disagreement with the p ropriety o f his sentence and the district court’s weighing of the § 3553(a) factors is insufficient to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. See United States

v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Sosa-Nunez has not demonstrated that the district court plainly erred by sentencing h im to a w ithin-guidelines 30-month prison term. See Gall , 552 U.S. at 51; Peltier , 505 F .3d at 392. Accordingly, the judgment of the district court is AFFIRMED.

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