IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2012

Lyle W. Cayce

Clerk

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.

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No. 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, we review the substantive

reasonableness of the sentence imposed for an abuse of discretion. Id. at 51;

United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). 

When reviewing the reasonableness of a sentence within a properly

calculated guidelines range, we generally will infer that the district court

considered the sentencing factors set 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

as Gorostieta’s arguments for mitigating his sentence but explicitly overruled his

arguments and concluded 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 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).

Furthermore, as he concedes, Gorostieta’s empirical 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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No. 12-50184

weighing of the § 3553(a) factors are 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).

Gorostieta has not demonstrated 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-Martinez, 564 F.3d at 753. Accordingly, the

judgment of the district court is AFFIRMED.

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