Case: 11-51118 Document: 00511960197 Page: 2 Date Filed: 08/17/2012
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