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United States v. Mauricio Diaz-Lario , 585 F. App'x 305 ( 2014 )


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  •      Case: 14-50129      Document: 00512852797         Page: 1    Date Filed: 12/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50129
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 1, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MAURICIO ALEXANDER DIAZ-LARIO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-870-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Mauricio Alexander Diaz-Lario (Diaz) appeals the 80-month, within-
guidelines sentence imposed following his conviction of illegal reentry into the
United States. He argues that the sentence is substantively unreasonable and
greater than necessary to meet the goals of
    18 U.S.C. § 3553
    (a). Diaz asserts
that when sentencing him, the district court failed to account for his personal
history and circumstances, including that his motive for returning was to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50129    Document: 00512852797     Page: 2    Date Filed: 12/01/2014
No. 14-50129
escape a gang in El Salvador and that he had a past addiction to cocaine. He
maintains that the presumption of reasonableness should not apply to his
sentence because U.S.S.G. § 2L1.2 is not supported by empirical data, but he
acknowledges that this argument is foreclosed.            See United States v.
Mondragon-Santiago,
    564 F.3d 357
     (5th Cir. 2009).
We review sentences for reasonableness in light of the § 3553(a) factors,
applying an abuse of discretion standard. Gall v. United States,
    552 U.S. 38
    ,
49-50 (2007). Under the bifurcated review process adopted in Gall, we first
consider whether the district court committed procedural error and next
examine the sentence for substantive reasonableness.
    Id. at 51
    ; United States
v. Johnson,
    619 F.3d 469
    , 471-72 (5th Cir. 2010).
The district court considered Diaz’s request for a low sentence and for a
reduction in his criminal history category and ultimately determined that a
sentence within the advisory guidelines range was appropriate under the
circumstances and the § 3553(a) factors. Diaz’s argument that the court failed
to consider his personal history and characteristics is insufficient to rebut the
presumption of reasonableness afforded his within-guidelines sentence. See
United States v. Gomez-Herrera,
    523 F.3d 554
    , 565-66 (5th Cir. 2008); United
States v. Rodriguez,
    523 F.3d 519
    , 526 (5th Cir. 2008); see also Gall,
    552 U.S. at 51
     (“The fact that the appellate court might reasonably have concluded that
a different sentence was appropriate is insufficient to justify reversal of the
district court.”). Therefore, Diaz has failed to show that his 80-month, within-
guidelines sentence is substantively unreasonable.
AFFIRMED.
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