Case: 12-51131       Document: 00512407057         Page: 1     Date Filed: 10/15/2013




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

                                                                            FILED
                                                                         October 15, 2013
                                     No. 12-51131
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MELVIN ALEXIS RODRIGUEZ-GALINDO, also known as Melvin Alexis
Ortega-Rodriguez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-61-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Martin Alexis Rodriguez-Galindo pleaded guilty to illegally reentering the
United States after having been removed, in violation of 8 U.S.C. § 1326, and he
was sentenced within the applicable Sentencing Guidelines range to 50 months
in prison and three years of supervised release. He argues that the sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a).


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51131     Document: 00512407057      Page: 2   Date Filed: 10/15/2013

                                  No. 12-51131

      We consider the reasonableness of the sentence under an abuse of
discretion standard. Gall v. United States, 

, 51 (2007). Although
Rodriguez-Galindo asserts that the presumption of reasonableness should not
apply to his within-guidelines sentence because U.S.S.G. § 2L1.2 lacks an
empirical basis, he concedes that this argument is foreclosed. See United States
v. Duarte, 

, 530-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 

, 366-67 (5th Cir. 2009).
      Rodriguez-Galindo contends that the within-guidelines sentence imposed
is greater than necessary to meet the sentencing goals of § 3553(a) because the
applicable Guidelines were not based on empirical data or national experience
and overstated his criminal history by double counting his prior conviction. We
have consistently rejected these arguments. See Duarte, 569 F.3d at 529-30;
Mondragon-Santiago, 564 F.3d at 366-67. Rodriguez-Galindo also contends that
the Guidelines overstated the seriousness of his reentry offense which was not
inherently evil, posed no danger to anyone, and was at bottom a trespass offense.
We have consistently rejected similar arguments. See United States v. Juarez-
Duarte, 

, 212 (5th Cir. 2008); United States v. Aguirre-Villa, 

, 683 (5th Cir. 2006).
      As for Rodriguez-Galindo’s argument that the sentence failed to reflect his
personal history and characteristics, the record shows that the district court
considered mitigating factors and balanced them against other § 3553(a) factors.
Rodriguez-Galindo has failed to show that his within-guidelines sentence “does
not account for a factor that should receive significant weight, . . . gives
significant weight to an irrelevant or improper factor, or . . . represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 

, 186 (5th Cir. 2009). We find no reason to disturb the presumption of
reasonableness in this case. See id.; United States v. Alonzo, 

, 554
(5th Cir. 2006).
      The judgment of the district court is AFFIRMED.

                                        2