Case: 09-50462   Document: 00511027446   Page: 1   Date Filed: 02/12/2010




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

                                                FILED
                                                               February 12, 2010
                                 No. 09-50462
                              Conference Calendar           Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

JOSE GUADALUPE MARTINEZ-ORTEGA, also known as Juan Carlos
Sanchez-Avila,

                                          Defendant-Appellant


                               Consolidated with
                                 No. 09-50471


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee
v.

JOSE GUADALUPE MARTINEZ-ORTEGA, also known as Jose Urbin,

                                          Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                           USDC No. 3:06-CR-748-1
                           USDC No. 3:08-CR-3511-1
   Case: 09-50462       Document: 00511027446 Page: 2             Date Filed: 02/12/2010
                                    No. 09-50462
                                  c/w No. 09-50471

Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Guadalupe Martinez-Ortega (Martinez) appeals the sentence imposed
following his guilty plea to illegal reentry. Martinez argues that the district
court’s within-guidelines sentence was substantively unreasonable because it
was greater than necessary to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a). In support thereof, he contends that the illegal reentry Guideline is
not empirically based because the defendant’s criminal record is double-counted
and that his personal history and characteristics, the nonviolent nature of his
offense, and his revocation sentence warranted a sentence at the bottom of the
guidelines range.
       We review the substantive reasonableness of Martinez’s sentence for an
abuse of discretion.        Gall v. United States, 

, 51 (2007).                   A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable. Rita v. United States, 

, 347 (2007).
       Martinez’s argument that his sentence is unreasonable because the illegal
reentry Guideline is not empirically based was rejected by this court in United
States v. Duarte, 

, 529-31 (5th Cir.), cert. denied, 

(2009). His argument that his personal history and characteristics entitled him
to leniency is also unavailing. “[T]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) with respect to a particular
defendant,” United States v. Campos-Maldonado, 

, 339 (5th Cir.),
cert. denied, 

(2008), and, citing Martinez’s two prior illegal reentry
convictions, the sentencing judge determined that the sentence imposed would
promote Martinez’s respect for the law. See § 3553(a)(2)(A).



       *
         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.

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   Case: 09-50462    Document: 00511027446 Page: 3        Date Filed: 02/12/2010
                                 No. 09-50462
                               c/w No. 09-50471

      Finally, Martinez’s suggestion that his within-guidelines sentence was
unreasonable because of the nonviolent nature of his illegal reentry offense and
in light of his revocation sentence is also unavailing; his disagreement with the
propriety of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. Cf. United States
v. Gomez-Herrera, 

, 565-66 (5th Cir.), cert. denied, 

(2008); United States v. Rodriguez, 

, 526 (5th Cir.), cert. denied, 

(2008).
      AFFIRMED.




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