### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-51118 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ALEXANDER HERRERA-ITZEP, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10-CR-1618-1

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Al e x a n d e r H e rrera-Itzep appeals th e 5 5

- m o nth withi n - gui d e lin e s s e nt e nc e he received following his guilty plea to illegal reentry into the United States

a f t er deportation. Herrera-Itzep argues that his sentence is greater t h a n

n e c essary to meet the sentencing goals of 18 U.S.C. § 3553(a). He spe c i f i c a l l y contends that the gu i d e lines sentencing range was too severe because the district court (1) gave too much weight to a previous conviction for aggravated assault with intent to commit rape, (2) did not consider th e m i t i g ating 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 August 17, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-51118 Document: 00511960197 Page: 1 Date Filed: 08/17/2012No. 11-51118

circumstances surroun d i n g t h e aggravated assault conviction, and (3) did not consider his benign motive for illegally reentering the country. He further contends t h a t his sentence is not entitled to a presumption of reasonableness because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not empirically based. Generally, we review sentences for reasonableness in light of the sentencing factors 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 , 552 U.S. 38, 49-51 (2007). If there is no error or the error is harmless, w e r e view the substantive reasonableness of th e sentence imposed for an abuse of discretion. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). However, because Herrera-Itzep did not raise his substantive reasonableness argu m e nt in the district court, we review for plain error only. See United States v. Peltier , 505 F.3d 389, 392 (5th Cir. 2007). When reviewing the reasonableness of a sen t ence within a properly calculated guidelines range, we generally w i l l i nfer that the district court consider e d the sentencing factors set forth in the Sentencing Guidelines and § 3353(a). United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005). The record reflects that the district court expressly considered the relevant § 3553(a) factors

as well as Herrera-Itzep’s arguments for mitigating his sentence but expressly overruled his arguments and concluded that a within-guidelines sentence was “appropr i a te” considering the circumstances of the case. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline HerreraItzep’s invitation to reweigh the § 3553(a) factors because “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). As he concedes, Herrera-Itzep’s empirical data argument is foreclosed by this court’s precedent. See United S t a t e s v . Duarte , 569 F.3d 528, 529-31 (5th
2 Case: 11-51118 Document: 00511960197 Page: 2 Date Filed: 08/17/2012No. 11-51118

C ir . 2009); Mondragon-Santiago , 564 F.3d at 366-67 n.7. Furthermore, H e rr e r a Itzep’s sentence, which is near the top of the guidelines range, i s p r e sumed reasonable. See United States v. Cisneros-Gutierrez , 517 F.3d 751, 766 (5th Cir. 2008). His general disagreement with the propriety of his sentence and the district court’s w e i ghing of the § 3553(a) factors are insufficient to rebut the pre s umption of reasonableness that attaches to a within-guidelines sentence. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); Un i t e d States v. Cooks, 589 F.3d 173, 186 (5th Cir. 200 9). Herrera-Itzep has not demonstrated that the d istrict court plainly erred by sentencing him to a within-guidelines 55-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.

3 Case: 11-51118 Document: 00511960197 Page: 3 Date Filed: 08/17/2012