Case: 12-51303       Document: 00512405731         Page: 1     Date Filed: 10/14/2013




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

                                                                            FILED
                                                                         October 14, 2013
                                     No. 12-51303
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN MARTINEZ-CANADA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-859-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Mexican national Juan Martinez-Canada (Martinez) pleaded guilty to
illegally reentry following deportation, in violation of 8 U.S.C. § 1326, and was
sentenced within the guidelines range to 50 months of imprisonment. For the
first time on appeal, Martinez challenges the reasonableness of his sentence,
arguing that it is greater than necessary to achieve the sentencing goals of 18
U.S.C. §3553(a). He contends that the illegal reentry Guideline, U.S.S.G.
§ 2L1.2, is not empirically based and double counts a defendant’s criminal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-51303

history. Martinez additionally argues that the presumption of reasonableness
should not apply to a sentence based on that Guideline, but he concedes that the
argument is foreclosed by United States v. Mondragon-Santiago, 

,
366-67 (5th Cir. 2009), and he raises the issue to preserve it for possible further
review. He further argues that the guideline range overstated the seriousness
of the offense and failed to account for his personal characteristics and benign
motive for reentry.
      Because Martinez did not make any objections to his sentence or argue in
the district court that his sentence was unreasonable, his arguments are
reviewable for plain error only. See United States v. Peltier, 

, 391-
92 (5th Cir. 2007) (requiring objection to substantive unreasonableness of
sentence to preserve error). Martinez acknowledges that his failure to object to
his sentence in the district court results in the application of the plain error
standard of review, conceding that the issue is foreclosed by Peltier; however, he
notes that the circuits are divided on whether a failure to object to the
reasonableness of the sentence upon its imposition requires plain error review,
and he seeks to preserve the issue for possible review by the Supreme Court.
      As Martinez correctly concedes, the argument that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 lacks empirical
support has been rejected by this court. See United States v. Duarte, 

, 529-31 (5th Cir. 2009) (rejecting the notion that this court should examine
the empirical basis behind each Guideline before applying the presumption of
reasonableness); see also Mondragon-Santiago, 564 F.3d at 366-67. Martinez’s
argument that his guidelines range was greater than necessary to meet
§ 3553(a)’s goals as a result of “double counting” is likewise unavailing. See
Duarte, 569 F.3d at 529-31. Similarly, this court has previously rejected the
argument that illegal reentry is merely a trespass offense that is treated too
harshly under § 2L1.2. See United States v. Aguirre-Villa, 

, 683
(5th Cir. 2006).

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                                 No. 12-51303

      The record reflects that the district court expressly considered Martinez’s
mitigation arguments but rejected them in favor of a guidelines sentence. The
within-guidelines sentence is entitled to a presumption of reasonableness. See
Rita v. United States, 

, 347 (2007). Martinez’s argument concerning
his benign economic motive for reentry fails to rebut the presumption of
correctness attached to his within-guidelines sentence. See United States v.
Gomez-Herrera, 

, 565-66 (5th Cir. 2008). Martinez has failed to
show that the district court’s imposition of a within-guidelines sentence of 50
months constituted plain error. See Peltier, 505 F.3d at 391-92. Accordingly, the
judgment of the district court is AFFIRMED.




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