Case: 13-50284      Document: 00512510671         Page: 1    Date Filed: 01/23/2014




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

                                                                                     FILED
                                    No. 13-50284                               January 23, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANDRES MEDINA-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1115-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Andres Medina-Martinez appeals the 27-month within guidelines
sentence imposed by the district court following his entry of a guilty plea to an
indictment that charged him with illegal reentry into the United States after
deportation. He argues that his sentence is unreasonable because it is greater
than necessary in view of the 18 U.S.C. § 3553(a) factors. He asserts that
U.S.S.G. § 2L1.2 double-counted his criminal history in calculating his offense


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50284

level and his criminal history category. He further asserts that § 2L1.2 gives
disproportionate weight to his prior conviction for making a false claim to
citizenship because the conviction increases his guidelines range despite its
staleness. In addition, he contends that § 2L1.2 overstates the seriousness of
his offense as it was essentially an international trespass. Finally, he contends
that the guidelines range fails to reflect his personal history and
characteristics.
      In the district court, Medina-Martinez objected to the recommended
guidelines range on the grounds that the criminal history category
substantially overstated his criminal history and the likelihood that he would
commit additional crimes and on the basis that his prior offenses consisted
mostly of driving offenses and not serious, violent, or dangerous acts. However,
he did not object to the substantive reasonableness of his sentence in the
district court on the particular grounds that he now raises; therefore, our
review is limited to plain error. See United States v. Mondragon-Santiago, 

, 361 (5th Cir. 2009). To succeed on plain error review, he must show
(1) a forfeited error (2) that is clear or obvious and (3) that affects his
substantial rights. See Puckett v. United States, 

, 135 (2009). If
the required showing is made, we may exercise our discretion “to remedy the
error . . . if the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” 

marks, bracketing, and citation
omitted).
      The district court considered Medina-Martinez’s arguments, the
Presentence Report, and the § 3553(a) factors and determined that a sentence
within the correctly calculated advisory guidelines range was appropriate. The
district court determined that his prior convictions for driving while
intoxicated were a threat to the public. Our circuit has rejected the argument



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                                 No. 13-50284

that the use of prior convictions to increase the offense level and also to
calculate criminal history is impermissible double-counting. See United States
v. Duarte, 

, 529-31 (5th Cir. 2009). Medina-Martinez’s argument,
that illegal reentry is not a serious offense but rather merely an international
trespass, is also an argument that we have rejected. United States v. Juarez-
Duarte, 

, 212 (5th Cir. 2008). In addition, this court has held that
“the staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable and does not destroy the presumption of reasonableness that
attaches to such sentences.” United States v. Rodriguez, 

, 234 (5th
Cir. 2011).   Medina-Martinez’s disagreement with the “propriety of the
sentence imposed” is not sufficient to rebut the presumption of reasonableness.
See United States v. Ruiz, 

, 398 (5th Cir. 2010). Because he has
not shown that the district court failed to give proper weight to his arguments
or any particular § 3553(a) factor, Medina-Martinez has failed to rebut the
presumption of reasonableness that is accorded to his within-guidelines
sentence. See United States v. Cooks, 

, 186 (5th Cir. 2009).
      AFFIRMED.




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