Case: 11-50023 Document: 00511576186 Page: 1 Date Filed: 08/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2011
No. 11-50023
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS GERMAN GARCIA-FIERRO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-1753-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Luis German Garcia-Fierro (Garcia) pleaded guilty to one count of illegal
reentry in violation of 8 U.S.C. § 1326. The district court sentenced him to 46
months in prison, within the advisory sentencing guidelines range of 46 to 57
months. Garcia challenges the substantive reasonableness of his sentence,
arguing that his sentencing range was greater than necessary to meet 18 U.S.C.
§ 3553(a)’s goals of providing just punishment, that it overstated the seriousness
of his offense, and that it failed to take into account mitigating factors.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50023 Document: 00511576186 Page: 2 Date Filed: 08/18/2011
No. 11-50023
Specifically, Garcia argues that his offense of reentry was “at bottom, an
international trespass.” He continues that § 2L1.2 of the United States
Sentencing Guidelines places heavy emphasis on a prior conviction, counting it
for both criminal history and the 16-level enhancement. He also argues that his
reasons for reentry into and remaining in the United States mitigate the
seriousness of his offense.
We review sentences for reasonableness, employing a deferential abuse-of-
discretion standard, and we presume that a sentence within a properly
calculated guidelines range is reasonable. See Gall v. United States, 552 U.S. 38,
49-50 (2007); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1930 (2010). The purported double-counting and lack of
empirical basis for § 2L1.2 do not necessarily render a within-guidelines
sentence unreasonable. See, e.g., United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009). We likewise see no abuse of discretion in the district court’s
rejection of Garcia’s contention that illegal reentry–a federal felony carrying
significant criminal penalties–is merely an international trespass, nor do we
discern any improper weighing of the other factors cited by Garcia, including his
personal history and characteristics. See Cooks, 589 F.3d at 186. The district
court considered Garcia’s arguments, the facts of the case, and the appropriate
statutory sentencing factors before concluding that a within-guidelines sentence
was appropriate. That determination is owed deference, and Garcia’s
disagreement with the district court’s assessment of those factors is insufficient
to rebut the presumption that the sentence is reasonable. See United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
Additionally, as Garcia concedes, his argument that the lack of a “fast-
track” disposition program in the Western District of Texas creates an
unwarranted sentencing disparity is foreclosed. See United States v. Gomez-
Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).
AFFIRMED.
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