### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-50184 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE GOROSTIETA, also known as Jorge Reyes-Garcia Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1099-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Jose Gorostieta appeals the 68-month within- guidelines sentence he received following his guilty plea to illegal reentry into the United States after deportation. Gorostieta 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 did not consider his benign motives for illegally reentering the country or other mitigating circumstances, such as the fact that he needed to take care of his wife and seven children or the fact that he committed a prior 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 Novembe r 21, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat 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 forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50184 Document: 00512060997 Page: 1 Date Filed: 11/21/2012No. 12-50184

burglary of a habitation offense merely to provide Christmas gifts for his children. He further argues that 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. 200 9). When reviewing the reasonableness of a senten c e within a properly calculated guidelines range, we generally will infer that the distric t c o u rt considered the sentencing factors s e t forth in the Sentencing Guidelines and § 3553(a). United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005). The record reflects that the district court considered the relevant § 3553(a) factors as well

a s Goro s tiet a’ s ar gu m e nt s for mitigating his sentence but explicitly overruled his arguments and conc l uded that a within-guidelines sentence was appropriate. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). Accordingly,

we decline Gorostieta’s invitation to reweigh the § 3553(a) factors because “the sentencing judge is in a superior position to find facts and ju d g e th e i r import under § 3553(a) with respect to a particular defendant

. ” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 200 8). Furthermore, as he concedes, Gorostieta’s empiri c al data argument is foreclosed by this court’s precedent. See 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 near the top of the guidelines range, is presumed 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
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weighing of the § 3553(a) factors are insufficient to rebut the presu m p t i o n 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). Gorostieta has not demon s t r a t ed that the district court abused its discretion by sentencing him to a within-guidelines 68-month prison term. See Gall , 552 U.S. at 51; Delgado-Mar t i n ez , 564 F.3d at 753. Accordingly, the judgment of the district court is AFFIRMED.

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