Case: 13-50529      Document: 00512589763         Page: 1    Date Filed: 04/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50529
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 8, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARIO ALBERTO GARCIA-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-30-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Mario Alberto Garcia-Rodriguez appeals the sentence imposed following
his guilty plea conviction for illegal reentry following deportation in violation
of 8 U.S.C. § 1326. He contends that the 77-month within-guidelines sentence
is substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals set forth in 18 U.S.C. § 3553(a). According to Garcia-
Rodriguez, the guidelines range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50529

U.S.S.G. § 2L1.2 is not empirically based and effectively double counts a
defendant’s criminal record.      He also argues that the guidelines range
overstated the seriousness of his non-violent reentry offense and failed to
account for his personal history and characteristics, specifically, his cultural
assimilation and motive for returning to the United States.
      Although Garcia-Rodriguez acknowledges that we apply plain error
review when a defendant fails to object to the reasonableness of the sentence
imposed in the district court, he seeks to preserve the issue for further review.
Because Garcia-Rodriguez did not object to the substantive reasonableness of
his sentence in the district court, plain error review applies. See United States
v. Peltier, 

, 391-92 (5th Cir. 2007).
      “When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the . . .
§ 3553(a) factors, we will give great deference to that sentence and will infer
that the judge has considered all the factors for a fair sentence set forth in the
Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 

, 338 (5th Cir. 2008)
(internal quotation marks and citation omitted). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” 

that the presumption of reasonableness
should not apply to sentences calculated under § 2L1.2 because the Guideline
is not empirically based. He acknowledges that his argument is foreclosed by
circuit precedent but seeks to preserve the issue for further review. As Garcia-
Rodriguez concedes, we have consistently rejected his “empirical data”
argument. See United States v. Duarte, 

, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 

, 366-67 & n.7 (5th Cir.



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                                No. 13-50529

2009).   We have also rejected arguments that double-counting necessarily
renders a sentence unreasonable, see 

, and that the
Guidelines overstate the seriousness of illegal reentry because it is simply a
non-violent international trespass offense, see United States v. Aguirre-Villa,

, 683 (5th Cir. 2006).
      The district court considered Garcia-Rodriguez’s request for downward
variance, as well as the Government’s argument that a sentence at or near the
top of the guidelines range was warranted.      The district court ultimately
concluded that a sentence at the bottom of the applicable guidelines range was
appropriate based on the circumstances of the case and the § 3553(a) factors.
Garcia-Rodriguez’s assertions that § 2L1.2’s lack of an empirical basis, the
double-counting of his prior conviction, the non-violent nature of his offense,
his cultural assimilation, and his motive for reentering justified a lower
sentence are insufficient to rebut the presumption of reasonableness. See
United States v. Gomez-Herrera, 

, 565-66 (5th Cir. 2008); United
States v. Rodriguez, 

, 526 (5th Cir. 2008). Therefore, Garcia-
Rodriguez has failed to show that his 77-month within-guidelines sentence is
substantively unreasonable, and there is no reversible plain error.         See

.          The district court’s judgment is
AFFIRMED.




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