Case: 09-50590     Document: 00511103951          Page: 1    Date Filed: 05/07/2010




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

                                                  FILED
                                                                             May 7, 2010
                                     No. 09-50590
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN ANTONIO GANDARA-GONZALEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-439-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        The district court sentenced Juan Antonio Gandara-Gonzalez to serve 46
months in prison and a three-year term of supervised release following his
conviction of one count of illegal reentry into the United States. In this appeal,
Gandara-Gonzalez challenges his sentence, which was within the applicable
guidelines range, as being too severe. He argues that the pertinent Guideline,
U.S.S.G. § 2L1.2, is flawed because it is not empirically based and because it
ignores the remote nature of his prior offense as well as his age. In Gandara-

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50590   Document: 00511103951 Page: 2        Date Filed: 05/07/2010
                                No. 09-50590

Gonzalez’s opinion, his sentence is unduly harsh because the district court did
not properly weigh the sentencing factors given in 18 U.S.C. § 3553(a).
      Following United States v. Booker, 

(2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 

, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 

(2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez,

, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error.” 

If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion. 

      Gandara-Gonzalez’s arguments concerning the district court’s balancing
of the § 3553(a) factors amount to a disagreement with the district court’s
weighing of these factors and the appropriateness of his within-guidelines
sentence. This disagreement does not suffice to show error in connection with
his sentence. See United States v. Cooks, 

, 186 (5th Cir. 2009),
petition for cert. filed (Feb. 19, 2010) (No. 09-9216); United States v. Gomez-
Herrera, 

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

(2008). His
claim that his sentence is improper due to the flawed nature of § 2L1.2 is
likewise unavailing. See United States v. Mondragon-Santiago, 

,
365-67 (5th Cir.), cert. denied, 

(2009). Gandara-Gonzalez has not
shown that his sentence was either procedurally or substantively unreasonable,
nor has he rebutted the presumption of reasonableness that attaches to his
within-guidelines sentence. See United States v. Armstrong, 

, 405
(5th Cir. 2008), cert. denied, 

(2009); United States v. Alonzo,

, 554 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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