Case: 11-50548     Document: 00511766448         Page: 1     Date Filed: 02/23/2012




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

                                                                            FILED
                                                                         February 23, 2012
                                     No. 11-50548
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS CAMPOS-CABRERA, also known as J. Jesus Campos-Cabrera, also
known as Jesus Campos,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-326-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Jesus Campos-Cabrera appeals the 46-month within-guidelines sentence
imposed following his conviction for illegal reentry after deportation. Campos-
Cabrera challenges only the substantive reasonableness of his sentence. The
Government moves for summary affirmance or, alternatively, for an extension
of time to file an appellate brief. Campos-Cabrera opposes summary affirmance.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50548      Document: 00511766448   Page: 2   Date Filed: 02/23/2012

                                  No. 11-50548

      Campos-Cabrera concedes that he failed to object to his sentence after it
was imposed and that this court’s review is limited to plain error. Nevertheless,
he seeks to preserve for further review his contention that an objection after the
imposition of sentence is not required for abuse-of-discretion review. Because
Campos-Cabrera did not object to the reasonableness of his sentence after it was
imposed, review is arguably for plain error. See United States v. Peltier, 

, 391-92 (5th Cir. 2007); but see United States v. Flanagan, 

,
124 (5th Cir. 1996). This court need not determine whether plain error review
is appropriate because Campos-Cabrera’s arguments fail even under the abuse-
of-discretion standard of review. See United States v. Rodriguez, 

,
525 (5th Cir. 2008).
      The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 

, 51 (2007).
Because Campos-Cabrera’s sentence was within his advisory guidelines range,
his sentence is presumptively reasonable. See United States v. Cooks, 

, 186 (5th Cir. 2009).
      Campos-Cabrera argues that the seriousness of his offense is overstated
because U.S.S.G. § 2L1.2 lacks an empirical basis and double counts criminal
history. We have consistently rejected this argument. See United States v.
Rodriguez, 

, 232-33 (5th Cir. 2011); United States v. Duarte, 

, 529-30 (5th Cir. 2009).      Further, as he acknowledges, Campos-
Cabrera’s argument that he deserved a lesser sentence based upon the disparity
in fast track early disposition programs is foreclosed by United States v. Gomez-
Herrera, 

, 562-63 & n.4 (5th Cir. 2008).
      Campos-Cabrera also contends that his guidelines range failed to account
for his personal history and circumstances.       The district court listened to
Campos-Cabrera’s arguments for a lesser sentence but found that a sentence at
the bottom of his guidelines range was appropriate. Campos-Cabrera has not



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  Case: 11-50548   Document: 00511766448    Page: 3   Date Filed: 02/23/2012

                                No. 11-50548

shown sufficient reason for this court to disturb the presumption of
reasonableness applicable to his sentence. See 

.
     Accordingly, the judgment of the district court is AFFIRMED.         The
Government’s motion for summary affirmance is DENIED. See United States
v. Holy Land Found. for Relief & Dev., 

, 781 (5th Cir. 2006). The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary.




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