IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 appeals 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 immigration

matters. He contends that his within-guidelines sentence was greater than

necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and,

thus, it was substantively unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2011

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.

Case: 11-50183 Document: 00511647370 Page: 1 Date Filed: 10/27/2011
No. 11-50183

More specifically, Figueroa Rivera argues that the illegal reentry

guideline, U.S.S.G. § 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 factor that should receive significant

weight, it gives significant weight to an irrelevant or 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. 2009), cert. denied, 130 S. Ct. 1930

(2010). As Figueroa Rivera acknowledges, his contention that a presumption of

reasonableness should not apply to a sentence within the guideline range 

because § 2L1.2 is not supported by empirical data is foreclosed. See United

States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v.

Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009).

Figueroa Rivera’s reliance on his good motive for reentering the United

States is insufficient to rebut the presumption of reasonableness, as are his

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, 523 F.3d 554, 565-66 (5th Cir. 2008). “A defendant’s

disagreement with the propriety of the sentence imposed does not suffice to

rebut the presumption of reasonableness that attaches to a within-guidelines

2

Case: 11-50183 Document: 00511647370 Page: 2 Date Filed: 10/27/2011
No. 11-50183

sentence.” United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). 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