Case: 13-50002     Document: 00512411595   Page: 1   Date Filed: 10/17/2013




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

                                                                 FILED
                                                               October 17, 2013
                                No. 13-50002
                              Summary Calendar                  Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

JOSE GALLARDO-BEJARANO, also known as Ismael Salas-Diaz, also known
as Jose Gallardo Bejarano,

                                          Defendant-Appellant

cons. w/ No. 13-50006

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

JOSE GALLARDO-BEJARANO, also known as Jose Gallardo,

                                          Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:12-CR-2005-1
                          USDC No. 3:11-CR-581-1
     Case: 13-50002       Document: 00512411595         Page: 2     Date Filed: 10/17/2013

                                      No. 13-50002
                                    c/w No. 13-50006

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Gallardo-Bejarano pleaded guilty to attempted illegal reentry into the
United States and was sentenced to a within-guidelines range term of 71 months
of imprisonment and three years of non-reporting supervised release. The
district court also revoked Gallardo-Bejarano’s term of supervised release on a
prior conviction and imposed a sentence at the top of the advisory guidelines
range of 14 months, to run concurrently to the illegal reentry sentence. His
appeals from those judgments were consolidated.
       On appeal, Gallardo-Bejarano concedes that precedent forecloses his
argument that the lack of an empirical basis for U.S.S.G. § 2L1.2 precludes an
appellate presumption that his 71-month sentence is reasonable. See United
States v. Mondragon-Santiago, 

, 366 (5th Cir. 2009). However, he
contends that his sentence is greater than necessary to meet the sentencing
goals of 18 U.S.C. § 3553(a) because the Sentencing Guidelines account for a
prior conviction both to increase his offense level and to calculate his criminal
history score. He also asserts that his crime of conviction was a type of trespass
and the guidelines range failed to reflect his personal history and circumstances.
Gallardo-Bejarano raises no challenges in this court to the revocation proceeding
or sentence; thus, he has abandoned any challenge that he could have raised.
See United States v. Charles, 

, 408 (5th Cir. 2006).
       We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,

, 49-51 (2007).          A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 

, 347


       *
         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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                                   No. 13-50002
                                 c/w No. 13-50006

(2007). We have rejected the argument that illegal reentry is merely a trespass
offense that is treated too harshly under § 2L1.2. See United States v. Aguirre-
Villa, 

, 683 (5th Cir. 2006). The argument that § 2L1.2 lacks an
empirical basis and constitutes double counting is also foreclosed. United States
v. Duarte, 

, 529-31 (5th Cir. 2009).                Gallardo-Bejarano’s
disagreement with the district court’s weighing of the § 3553(a) factors is
insufficient to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence. See United States v. Cooks, 

, 186 (5th
Cir. 2009). “[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. 2008). The fact
that we “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S.
at 51.
         Gallardo-Bejarano has not demonstrated that the district court abused its
discretion by sentencing him to a within-guidelines sentences of 71 months. See
id. at 51. The judgments of the district court are AFFIRMED.




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