IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50813

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOEL GONZALEZ-RUIZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-1700-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Joel Gonzalez-Ruiz appeals the sentence imposed following his guiltyplea conviction for illegal reentry following deportation, in violation of 8 U.S.C. 

§ 1326. He contends: although the sentence of 41-months’ imprisonment was 

at the low end of the correctly-calculated, Sentencing Guidelines range of 41-

51 months, it was greater than necessary to achieve the sentencing goals of 18 

U.S.C. § 3553(a). Along that line, Gonzalez maintains: because Guideline 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 11, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50813

§ 2L1.2 (for illegal reentry) effectively double-counts a defendant’s criminal 

record, the advisory Guidelines-sentencing range overstated the seriousness of 

his non-violent offense, which he claims is only an international trespass. He 

also contends the district court failed to account for his personal history and 

circumstances, including his motive for returning to the United States 

(working to pay for son’s surgery in Mexico) and his reduced risk of recidivism.

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the advisory Guidelines-sentencing range for use in 

deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 

(2007). In that respect, for issues preserved in district court, its application of 

the Guidelines is reviewed de novo; its factual findings, only for clear error. 

E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

Gonzalez does not claim procedural error, but contends only that the sentence 

imposed was substantively unreasonable.

“A discretionary sentence imposed within a properly calculated 

[G]uidelines [sentencing] range is presumptively reasonable.” United States v. 

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Additionally, our court 

will infer that, in selecting the sentence to be imposed, the district court 

considered all of the relevant sentencing factors set forth in § 3553(a). See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, 

Gonzalez must show that his “sentence does not account for factors that should 

receive significant weight, gives significant weight to irrelevant or improper 

factors, or represents a clear error of judgment in balancing sentencing 

factors”. United States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012). 

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Our court has rejected the oft-repeated claims that double-counting 

necessarily renders a sentence unreasonable and that the Guidelines overstate 

the seriousness of illegal reentry. United States v. Duarte, 569 F.3d 528, 529–

31 (5th Cir. 2009). Gonzalez also contends the within-Guidelines sentence 

should not be afforded the presumption of reasonableness because Guideline 

§ 2L1.2 lacks an empirical basis. He concedes our precedent forecloses this 

contention, see United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 

(5th Cir. 2009), and raises it only for possible further review. 

“The sentencing judge is in a superior position to find facts and judge 

their import under § 3553(a) in the individual case.” Gall, 552 U.S. at 51 

(citation and internal quotation marks omitted). Here, the district court 

specifically noted it considered the age of Gonzalez’ prior conviction in the 

United States of aggravated discharge of a firearm, the medical condition of 

Gonzalez’ son, and the lack of prior illegal reentry convictions; however, it 

“counterbalanced” those facts with the nature of Gonzalez’ prior offense as it 

related to the need for stating deterrence and protection of the public. 

Notwithstanding the Government’s stating at sentencing that a sentence 

below the Guidelines-sentencing range “might be appropriate”, the selection of 

Gonzalez’ sentence was solely within the providence of the district court. Cf. 

id. at 51–52 (explaining role of sentencing judge). Gonzalez, therefore, has 

failed to rebut the above-referenced presumption of reasonableness applied to 

this 41-month, within-Guidelines sentence.

AFFIRMED.

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