Case: 12-50897       Document: 00512326791           Page: 1    Date Filed: 07/31/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                             July 31, 2013
                                     No. 12-50897
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SERGIO ARMANDO PENA-VAQUERA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1113-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Sergio Armando Pena-Vaquera (Pena) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. Pena argues that his sentence is substantively
unreasonable because it is greater than necessary to meet the goals of 18 U.S.C.
§ 3553(a). He maintains that his within-guidelines range sentence should not
be considered presumptively reasonable because the Guideline under which he

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-50897     Document: 00512326791      Page: 2   Date Filed: 07/31/2013

                                  No. 12-50897

was sentenced, U.S.S.G. § 2L1.2, is not empirically based, but he acknowledges
that this argument is foreclosed. He contends that the lack of an empirical
basis for § 2L1.2 makes advisory guidelines ranges under § 2L1.2 excessive
even in ?mine-run” cases. He asserts that his guidelines range was greater
than necessary because § 2L1.2 double counted his prior convictions and
because his offense was a mere trespass. He contends that the sentence failed
to account for his personal history and characteristics because it did not reflect
sufficient consideration for his returning to the United States because his
father was ill, his cultural assimilation, and his wife’s decision to relocate with
him to Mexico after his sentence is served.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 

, 554 (5th Cir.
2006). As Pena concedes, his argument that his within-guidelines range
sentence should not be considered presumptively reasonable because § 2L1.2
is not empirically based is foreclosed. See United States v. Duarte, 

, 529-31 (5th Cir. 2009).
      The district court considered and rejected Pena’s arguments for a below
guidelines range sentence. With explicit reference to the § 3553(a) factors of
promoting the respect of law, providing for the safety of the community, and
deterrence, it determined that a sentence within the guidelines range was
appropriate. The international trespass and the double counting of prior
convictions arguments that Pena raises have both been previously raised in
this court without success. See United States v. Aguirre-Villa, 

,
683 (5th Cir. 2006); Duarte, 569 F.3d at 529-31. As Pena was sentenced within
the guidelines range, the sentence is entitled to a presumption of
reasonableness, and Pena has not shown sufficient reason for us to disturb that




                                        2
    Case: 12-50897   Document: 00512326791   Page: 3   Date Filed: 07/31/2013

                              No. 12-50897

presumption. See United States v. Gomez-Herrera, 

, 565-66 (5th
Cir. 2008).
      AFFIRMED.




                                    3