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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50150

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GERARDO GONZALEZ-GUTIERREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:08-CR-209-1

Before KING, JOLLY, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Gerardo Gonzalez-Gutierrez (Gonzalez) pleaded guilty to one count of

illegally reentering the United States after previously being deported. His total

offense level included a 16-level increase for being deported after smuggling

aliens into the United States, U.S.S.G. § 2L1.2(b)(1)(A)(vii). The district court

sentenced him to a prison term of 37 months, at the bottom of the applicable

guidelines range.

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2009

Charles R. Fulbruge III

Clerk
No. 09-50150

2

Gonzalez appeals his sentence. We presume that the within-guidelines

sentence is reasonable. United States v. Mondragon-Santiago, 564 F.3d 357, 360

(5th Cir.), cert. denied, 130 S. Ct. 192 (2009); see also Rita v. United States, 551

U.S. 338, 352-56 (2007). Furthermore, because Gonzalez did not object in the

district court to the reasonableness of the sentence, our review is for plain error.

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

Gonzalez contends that his sentence is unreasonably high and overstates

the seriousness of his conviction because the illegal-reentry Guideline that

enhanced his offense level by 16 levels for his prior alien-smuggling conviction

lacks an empirical basis and increased the guidelines sentence too much given

that his prior conviction was for a non-violent offense. A sentence within the

guidelines range calculated based on the illegal-reentry Guideline, § 2L1.2,

though, is presumed reasonable on appeal. See United States v. Duarte, 569 F.3d

528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); Mondragon-Santiago,

564 F.3d at 366-67. Furthermore, the district court disagreed with Gonzalez’s

characterization of his crimes, determining that the smuggling and illegalreentry convictions were serious, and we defer to this conclusion because the

district court is in the best position to assess the facts. See Gall v. United States,

552 U.S. 38, 51-52 (2007); United States v. Campos-Maldonado, 531 F.3d 337,

339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).

Gonzalez also faults the within-guidelines sentence because, he contends,

it fails to account for his motive for reentering the United States—to find

work—and is greater than necessary to deter him from committing crimes in the

future. The district court considered the contention that Gonzalez’s economic

motivations warranted a lower sentence, but rejected it. It also addressed the

issue of deterrence and found that a within-guidelines sentence was necessary

because the short sentence that he received for the smuggling conviction was

insufficient to prevent him from committing the current illegal-reentry offense.
No. 09-50150

3

These findings were well within the court’s discretion, and we will not displace

them. See Campos-Maldonado, 531 F.3d at 339.

The judgment is AFFIRMED.