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

No. 12-50573 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff – Appellee

v. FERNANDO URIBE, Defendant – Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-366-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Fernando Uribe appeals the concurrent within-guidelines sentences of 36 months imposed f

ollowin g h i s convictions for attempted illegal reentry and falsely claiming United States citizenship. A s a threshold matter, Uribe argues that a presumption of reasonableness s hould n ot apply to his within-guidelines sentences o n a ppellate review because t he appli c a b l e g u i d e l i n e , U

. S

. S

. G

. § 2 L1.2, is n ot the result of empirical evidence or study. As Uri b e a c k n owledges, this argument is foreclosed. See United States v. D uarte , 569 F.3d 528, 529-31 (5th U 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 June 3, 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

. R. 47. 5. 4. Case: 12-50573 Document: 00512260483 Page: 1 Date Filed: 06/03/2013No. 12-50573

Cir. 2009); United S tates v. M ondragon-Santiago , 564 F.3d 357, 3 66-67 (5th Cir. 2009). Uribe also argues that h is within-guidelines sentences were greater than
necessary to meet t h e s e n tencing goals of 18 U.S.C. § 3553(a) and thus were unreasonable, in part, because the illegal r eentry g uideline doubled-counted one of his prior convictions in d etermining his offense level and criminal history. We have rejected the argument that a sentence i mposed pursuant t o § 2 L 1.2 is greater t han necessary to meet § 3553(a)’s goals as a r esult of any double counting inherent in that Guideline. See Duarte , 569 F.3d at 529-31. Finally, Uribe argues that his g uid e l ines ranges failed t o r e flect his personal history and circumstances, t he benign nature of h i s i l l e g al reentry offense, and the r easons h e committed t hat offense. He f u r t h e r c o n tends that the district court i ncorrectly w e ighed these f actors. His arguments are unavailing. The district c ourt, which was “in a superior position to find facts and judge t h eir import under § 3553(a),” considered and rejected Uribe’s arguments f o r sentences below his advisory guidelines ranges. U nited State s v . Campos-Maldonado , 531 F .3d 337, 339 (5th Cir. 2008). After consideration of Uribe’s argument s , t h e court expressly gave more weight to other § 3553(a) factors, including Uribe’s criminal histor y and history of violence, and determined that sentences within the ranges were appropriate. Uribe has not rebutted the presumption of reasonableness a ttaching to his within-guidelines sentences on appellate review. See United States v. Gomez-Herr e r a , 523 F.3d 554, 565-66 (5th Cir. 2008). The record reflects no abuse o f d iscretion in the district court’s sentencing decision. See Gall v. United States , 552 U.S. 3 8 , 5 1 ( 2 0 07). Accordingly, the court’s judgment is AFFIRMED.

2 Case: 12-50573 Document: 00512260483 Page: 2 Date Filed: 06/03/2013