Case: 11-51003     Document: 00511911057         Page: 1     Date Filed: 07/05/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 5, 2012
                                     No. 11-51003
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JULIO CESAR HERRERA-DELGADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1594-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Julio Cesar Herrera-Delgado (Herrera) appeals the 46-month sentence
imposed following his guilty plea conviction of illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a). Herrera argues that although the
sentence is within the guidelines range of 46 to 57 months of imprisonment, the
Guidelines that govern illegal reentry offenses lack an empirical foundation and
therefore the appellate presumption of reasonableness that applies to within-
guidelines sentences should not apply. He further argues that his sentence is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51003   Document: 00511911057      Page: 2   Date Filed: 07/05/2012

                                  No. 11-51003

substantively unreasonable because it is greater than necessary to effectuate the
sentencing goals of 18 U.S.C. § 3553(a), as the guidelines calculations double
counted his criminal history and the sentence does not take into account his
personal history and characteristics.
      Herrera correctly concedes that his argument regarding the appellate
presumption of reasonableness is foreclosed by United States v. Duarte, 

, 529-31 (2009), which held that the possibility of unjust sentences does not
give this court authority to overturn the appellate presumption of
reasonableness that applies to within-guidelines sentences. See also United
States v. Mondragon-Santiago, 

, 366-67 (5th Cir. 2009) (determining
that Kimbrough v. United States, 

 (2007), “does not require
discarding the presumption [of reasonableness] for sentences based on
non-empirically-grounded Guidelines”).
      Herrera’s challenge to the substantive reasonableness of his sentence is
reviewed under the abuse of discretion standard. See Gall v. United States, 

, 50-51 (2007); United States v. Cisneros-Gutierrez, 

, 764 (5th
Cir. 2008).   The argument that a sentence is unreasonable because the
Guidelines governing illegal reentry offenses result in double counting of a prior
criminal conviction has been rejected by this court. See Duarte, 569 F.3d at
529-31 & n.2. Also, Herrera’s argument is essentially that this court second
guess the district court’s assessment of the § 3553(a) factors, which this court
does not do. See Cisneros-Gutierrez, 517 F.3d at 767. Moreover, the sentencing
decision reflects an individualized assessment based upon the facts that were
presented in the district court and after consideration of § 3553(a) factors. See
Gall, 552 U.S. at 49-51. Herrera’s arguments do not overcome the presumption
of reasonableness that applies to his within-guidelines sentence. See United
States v. Cooks, 

, 186 (5th Cir. 2009).
      The district court’s judgment is AFFIRMED.



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