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

No. 11-50183 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. FILIBERTO FIGUEROA RIVERA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-2719-1

Before REAVLEY, SMITH and PRADO, Circuit Judges. PER CURIAM: * Filiberto Figueroa Rivera appeal s the 46-month concurrent sentences of imprisonment imposed following his guilty plea convictions of illegal reentry of the United States after deportation and false personation in immi gration matters. He contends that his within-gu i delines sentence was greater than necessary to satisfy the se n t e n c i n g goals set forth in 18 U.S.C. § 3553(a) and, thus, it was substantively unreasonable. 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 Octob er 27 , 20 11 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: 11-50183 Document: 00511647370 Page: 1 Date Filed: 10/27/2011No. 11-50183

More specifically, Figueroa Rivera argu e s that the illegal reentry guideline, U

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. § 2L1.2, is flawed because it lacks an empirical basis. He contends that, by double counting his prior alien transportation offense, the guidelines overstated the necessary sentence. He maintains that the guidelines did not accurately reflect the seriousness of his illegal reentry offense, which he characterizes as an international trespass. Finally, Figueroa Rivera argues that the guidelines range failed to account for the circumstances of his offense and his personal history. In this regard, he contends that his offense is mitigated by the fact that he is a good and hardworking father who reentered the United States because he missed his children. “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado , 531 F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only upon a showing that the sentence does not account for a fac t or that should receive significant weight, it gives significant weight to an irrelev a n t o r improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 200 9), cert. denied, 130 S. Ct. 1930 (2010). As Figueroa Rivera acknowledges, his contention that a presumption of reasonableness should not apply to a sen t e n ce within the guideline range because § 2L1.2 is not supported by empirical data is foreclosed. Se e United S t ates v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v . Mondragon-Santiago , 564 F.3d 357, 367 (5th Cir. 200 9). Figueroa Rivera’s reliance on h i s go od motive for reentering the United S t a t e s is insufficient to rebut the presumption of reasonableness, as are hi s contentions that the illegal reentry guideline lacks an empirical basis and that the guidelines overstate the seriousness of his offense. See United States v. Gomez-Herrera , 5 2 3 F .3d 554, 565-66 (5th Cir. 2008). “A defendant’s disagreement with the p r o p ri e ty of the sentence imposed does not suffice to rebut the presumption of reasonableness that attaches t o a w i thin-guidelines
2 Case: 11-50183 Document: 00511647370 Page: 2 Date Filed: 10/27/2011No. 11-50183

sentence.” United States v. Ruiz , 621 F.3d 390, 398 (5th C i r . 2 0 10). Figueroa Rivera has not rebutted the presumption of reasonableness. See Cooks , 589 F.3d at 186. AFFIRMED.

3 Case: 11-50183 Document: 00511647370 Page: 3 Date Filed: 10/27/2011