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

No. 12-50959 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. E ZEQUIEL MENDOZA-ESPINOZA, also known as Cipriano Rodriguez-Garc i a , Defendant-Appellant

A ppeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-1063-1

Before JOLLY, DeMOSS, and ELROD, Circuit Judges. PER CURIAM: * Ezequiel Mendoza-Espinoza pleaded g uilty to illegally reentering the United States after having b een removed i n violation of 8 U.S.C. § 1326, and he

was sentenced w ithin the S e ntencing Guidelines t o 57 months of imprisonment. He argues that his within-guidelines s ente n ce is s ubstantively unreasonable because it is greate r than necessary to m eet the sentencing goals of 18 U.S.C. § 3553(a). 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 October 15, 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: 12-50959 Document: 00512406844 Page: 1 Date Filed: 10/15/2013No. 12-50959

We consider the reasonableness of a sentence by engaging i n a bifurcated review process. Gall v. U nited States , 5 52 U .S. 38, 51 (2007). Because M endozaEspinoza does not argue that the district court committed a ny procedural error,
we consider only the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Al t h o u gh Mendoza-Espinoza asser t s t h a t a p r e s u m p t i o n o f r e a s o n a b l e n e s s should not a pply t o h is within-guidelines sentence because U.S.S.G. § 2L1.2 lacks an e m p i r i c a l basis, t hat issue is foreclosed. See United States v. Duarte , 569 F.3d 528, 530-31 ( 5th Cir. 2009); United States v. Mondragon-Santiago , 564 F.3d 357, 366-67 (5t h C i r . 2 009). His argument that § 2L1.2 is unreasonable because it is not empirically based likewise i s foreclosed, and we have repeatedly rejected the argument that a sentence imposed pursuant to § 2 L1.2 is greater than necessary to meet § 3553(a)’s goal s a s a r esult o f any double c ounting inherent in that Guideline. See Duarte , 569 F.3d at 529-31. As for his argument that the guidelines range overstated the seriousness of h is illegal reentry o ffense and f ailed to reflect his p e rsonal h i s t o r y a n d characteristics, t he record reflects that t he district court considered m itigation factors and balanced them against other § 3553(a) factors. Mendoza-Espinoza has failed to s how that his within-guidelines sentence “does not account for a factor that should receive significant weight, . . . gives significant weight to an irrelevant or improper factor, or . . . represents a c lear er r o r o f judgment in balanci n g sentencing factors.” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). We find no reason to disturb the presumption of reasonableness in this case. See id. ; United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). The judgment of the district court is AFFIRMED.

2 Case: 12-50959 Document: 00512406844 Page: 2 Date Filed: 10/15/2013