Case: 10-50091 Document: 00511258846 Page: 1 Date Filed: 10/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2010
No. 10-50091
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAUL ARVID CANTU, also known as Victor Alarcon,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CR-27-1
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Raul Arvid Cantu appeals his 37-month sentence imposed following his
guilty plea conviction for illegal reentry after removal, in violation of 8 U.S.C.
§ 1326. He argues that the presumption of reasonableness does not apply to his
within-guidelines sentence because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not supported by empirical data. Cantu also argues that the sentence
is greater than necessary to meet the sentencing goals outlined in 18 U.S.C.
§ 3553(a). He contends that a sentence below the guidelines is sufficient because
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50091 Document: 00511258846 Page: 2 Date Filed: 10/08/2010
No. 10-50091
the 16-level enhancement was based on a 25-year old conviction; his personal
belongings were stolen from his apartment after his arrest; and he was
rehabilitated.
As Cantu concedes, his argument that the presumption of reasonableness
does not apply because § 2L1.2 is not empirically-based is foreclosed by United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009), and United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.
2008).
Cantu’s substantive reasonableness argument is likewise unavailing.
Cantu’s arguments fail to overcome the presumption of reasonableness that
attaches to his within-guidelines sentence. See Duarte, 569 F.3d at 529-31.
Furthermore, Cantu’s belief that the mitigating factors presented for the district
court’s consideration at sentencing should have been balanced differently is
insufficient to disturb the presumption. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
AFFIRMED.
2