Case: 11-51118 Document: 00511960197 Page: 1 Date Filed: 08/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2012
No. 11-51118
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEXANDER HERRERA-ITZEP,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-1618-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Alexander Herrera-Itzep appeals the 55-month within-guidelines sentence
he received following his guilty plea to illegal reentry into the United States
after deportation. Herrera-Itzep argues that his sentence is greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He specifically
contends that the guidelines sentencing range was too severe because the
district court (1) gave too much weight to a previous conviction for aggravated
assault with intent to commit rape, (2) did not consider the mitigating
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51118 Document: 00511960197 Page: 2 Date Filed: 08/17/2012
No. 11-51118
circumstances surrounding the aggravated assault conviction, and (3) did not
consider his benign motive for illegally reentering the country. He further
contends that his sentence is not entitled to a presumption of reasonableness
because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not empirically based.
Generally, we review sentences for reasonableness in light of the
sentencing factors in § 3553(a). United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). First, we consider whether the district court committed
a significant procedural error. Gall v. United States, 552 U.S. 38, 49-51 (2007).
If there is no error or the error is harmless, we review the substantive
reasonableness of the sentence imposed for an abuse of discretion. Id. at 51;
United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). However,
because Herrera-Itzep did not raise his substantive reasonableness argument
in the district court, we review for plain error only. See United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007).
When reviewing the reasonableness of a sentence within a properly
calculated guidelines range, we generally will infer that the district court
considered the sentencing factors set forth in the Sentencing Guidelines and
§ 3353(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record
reflects that the district court expressly considered the relevant § 3553(a) factors
as well as Herrera-Itzep’s arguments for mitigating his sentence but expressly
overruled his arguments and concluded that a within-guidelines sentence was
“appropriate” considering the circumstances of the case. See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline Herrera-
Itzep’s invitation to reweigh the § 3553(a) factors because “the 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, 531
F.3d 337, 339 (5th Cir. 2008).
As he concedes, Herrera-Itzep’s empirical data argument is foreclosed by
this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
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No. 11-51118
Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. Furthermore, Herrera-
Itzep’s sentence, which is near the top of the guidelines range, is presumed
reasonable. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.
2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors are insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Herrera-Itzep has not demonstrated that the district court plainly erred
by sentencing him to a within-guidelines 55-month prison term. See Gall, 552
U.S. at 51; Peltier, 505 F.3d at 392. Accordingly, the judgment of the district
court is AFFIRMED.
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