Case: 11-50853     Document: 00511883347         Page: 1     Date Filed: 06/11/2012




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

                                                                            FILED
                                                                           June 11, 2012
                                     No. 11-50853
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

RAFAEL GUTIERREZ-DIAZ, also known as Rafael Gutierrez, also known as
Luis Angel Ortiz-Morales,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3-11-CR-1272-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Rafael Gutierrez-Diaz has appealed his sentence for illegal reentry
following deportation (Count One) and false personation when applying for
admission to the United States (Count Two). The district court imposed the
lowest within-guidelines sentence, a term of 57 months of imprisonment and
three years of supervised release. Gutierrez-Diaz argues that his sentence is
substantively unreasonable because it is greater than necessary to achieve the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50853    Document: 00511883347      Page: 2   Date Filed: 06/11/2012

                                  No. 11-50853

sentencing goals of 18 U.S.C. § 3553(a). He does not suggest that the district
court committed a procedural error in calculating the applicable guideline range,
but he argues that the illegal reentry guideline, U.S.S.G. § 2L1.2, is flawed
because it double counts the defendant’s criminal history. He contends that the
Guidelines overstate the seriousness of his illegal reentry offense, which he
characterizes as nothing more than an international trespass.             Finally,
Gutierrez-Diaz argues that the Guidelines did not account for his personal
history and circumstances and that the district court did not give enough weight
to these factors.
      Because Gutierrez-Diaz did not object at sentencing or argue in the district
court that his sentence was unreasonable, we review his arguments for plain
error. See Puckett v. United States, 

, 134-35 (2009); United States
v. Peltier, 

, 391-92 (5th Cir. 2007).
      The Sentencing Guidelines provide for consideration of a prior conviction
for both criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2,
cmt. n.6. We have rejected the argument that such double counting necessarily
renders a sentence unreasonable. See United States v. Duarte, 

,
529-31 (5th Cir. 2009). We have also rejected the argument that the Guidelines
overstate the seriousness of illegal reentry because it is simply an international
trespass offense. See United States v. Aguirre-Villa, 

, 683 (5th Cir.
2006).
      The district court considered Gutierrez-Diaz’s sentencing arguments and
his reasons for returning to the United States before determining that a within-
Guideline sentence was appropriate. The court imposed the lowest sentence in
the advisory guideline range. Gutierrez-Diaz has not shown that the district
court considered any irrelevant or improper factors, that it made an error in
judgment in weighing the § 3553(a) factors, or that it did not account for a factor
that should receive significant weight. See United States v. Cooks, 

,
186 (5th Cir. 2009). The district court did not abuse its discretion, much less

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   Case: 11-50853   Document: 00511883347      Page: 3   Date Filed: 06/11/2012

                                 No. 11-50853

plainly err, in imposing a sentence within the advisory guideline range. See Gall
v. United States, 

, 50-51 (2007).
      Accordingly, the judgment of the district court is AFFIRMED.




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