Case: 15-50284    Document: 00513270715   Page: 1   Date Filed: 11/13/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                               No. 15-50284
                             Summary Calendar
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                              November 13, 2015
UNITED STATES OF AMERICA,
                                                                  Lyle W. Cayce
                                                                       Clerk
                                         Plaintiff-Appellee

v.

TOMAS ALEJANDRO URIBES-GUARDIOLA, also known as Juan Cervano
Padilla,

                                         Defendant-Appellant


_______________________________________________________________________

Cons. w/No. 15-50287

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

TOMAS ALEJANDRO URIBES-GUARDIOLA,

                                         Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:14-CR-1361-1
                          USDC No. 2:14-CR-1245-1
     Case: 15-50284      Document: 00513270715         Page: 2    Date Filed: 11/13/2015


                                     No. 15-50284
                                   c/w No. 15-50287

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Tomas Alejandro Uribes-Guardiola pleaded guilty to illegal reentry and
received a within-guidelines sentence of 35 months of imprisonment and a
three-year term of supervised release. In addition, his supervised release term
for a previous illegal-reentry conviction was revoked, and he received a within-
guidelines sentence of 12 months of imprisonment to be served consecutively.
Uribes-Guardiola has timely appealed each case, and the cases have been
consolidated on appeal.
       Uribes-Guardiola contends that his combined sentence is longer than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and is therefore
substantively unreasonable. He argues that his sentence is too long for an
offense that he contends amounts to an international trespass because
U.S.S.G. § 2L1.2, the illegal-reentry Guideline, lacks an empirical basis and
gives too much weight to prior convictions rather than the offense conduct. He
asserts that permitting the court to rely on a remote conviction that did receive
criminal history points to “impose a dramatically higher sentence” for illegal
reentry “undermines respect for the law and results in greater punishment
than is just.” He also argues that his sentence fails to reflect his personal
history and characteristics, including his motive for returning to the United
States, which he contends “mitigates the seriousness of the offense.”
       This court assesses the substantive reasonableness of a sentence for an
abuse of discretion. Gall v. United States, 

, 51 (2007). The district
court must make an individualized assessment based on the facts of the case in


       * 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. 15-50284
                               c/w No. 15-50287

light of § 3553(a) and impose a sentence sufficient, but not greater than
necessary, to comply with the goals of § 3553(a)(2).             

“A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado,

, 338 (5th Cir. 2008).
      As Uribes-Guardiola recognizes, his argument that we should not apply
the reasonableness presumption because § 2L1.2 lacks an empirical basis is
foreclosed by this court’s precedent, see United States v. Mondragon-Santiago,

, 366 (5th Cir. 2009), but he raises the issue to preserve it for
further appeal.      We have also previously rejected arguments that the
Guidelines overstate the seriousness of illegal reentry because it is simply a
non-violent international trespass that is treated too harshly under § 2L1.2.
United States v. Aguirre-Villa, 

, 682-83 (5th Cir. 2006).
      Furthermore, as to his contention challenging “whether the measure of
the seriousness of the offense itself should be driven by a prior conviction that
is excluded from the measure of the seriousness of his criminal history,” the
Guidelines expressly contemplate such a scenario. Section 2L1.2 instructs
that, when the defendant previously was deported after certain types of
convictions, the court should “increase by 16 levels if the conviction receives
criminal history points . . . or by 12 levels if the conviction does not receive
criminal history points.” § 2L1.2(b)(1)(A). Insofar as he is arguing that the 12-
level increase has resulted in a sentence that is unjust, Uribes-Guardiola has
not identified any authority to overturn the presumption of reasonableness
that applies to his within-guidelines sentence. See United States v. Duarte,

, 530 (5th Cir. 2009).
      The district court in this case considered Uribes-Guardiola’s arguments,
concluded that the applicable guidelines ranges were reasonable, and imposed


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                                  No. 15-50284
                                c/w No. 15-50287

sentences within those ranges. Uribes-Guardiola’s contention that his total
sentence does not reflect his personal history and characteristics does not
establish that his combined sentence fails to account for a § 3553(a) factor,
“gives significant weight to an irrelevant or improper factor, or [ ] represents a
clear error of judgment in balancing [the] factors.” United States v. Cooks, 

, 186 (5th Cir. 2009). The district court was in a superior position to
find facts and assess their import under § 3553(a), and this court will not, as
Uribes-Guardiola seems to urge, reweigh the district court’s assessment of the
§ 3553(a) factors. See 

; 

. Uribes-Guardiola’s assertions are insufficient to rebut the presumption
of reasonableness. See 

; United States v. Gomez-
Herrera, 

, 565-66 (5th Cir. 2008).
      Accordingly, the judgments of the district court are AFFIRMED.




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