Case: 13-50363      Document: 00512479327         Page: 1    Date Filed: 12/20/2013




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

                                                                              FILED
                                    No. 13-50363                      December 20, 2013
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSVALDO NAVA-ACOSTA, also known as Osvaldo Cossio-Acosta,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2738-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Osvaldo Nava-Acosta appeals the 41-month
within-guidelines sentence imposed after he was convicted for illegal reentry
following deportation. Nava-Acosta contests the substantive reasonableness
of his sentence for being greater than necessary to accomplish the objectives of
18 U.S.C. § 3553(a). In support of this claim, he challenges the use of U.S.S.G.
§ 2L1.2, the illegal-reentry guideline, in calculating his guidelines range. He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50363

asserts that this guideline (1) is not empirically based, (2) double counts his
prior drug-trafficking conviction, and (3) fails to account for the nonviolent
nature of his offense, which he insists is, “at bottom, a trespassory [sic]
offense.” Nava-Acosta also asserts that the district court failed to account for
his personal circumstances and the circumstances of this offense, noting that
he returned to the United States only to find work and thus earn money to
support his family.
      We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 

, 51 (2007). Although Nava-Acosta
objected to the substantive reasonableness of his sentence, he raises his
contention that his sentence is substantively unreasonable because of alleged
flaws in § 2L1.2 for the first time on appeal. To preserve a claim of error, the
defendant must raise it “with the district court in such a manner so that the
district court may correct itself.” United States v. Rodriguez, 

, 414
(5th Cir. 1994) (internal quotation marks and citations omitted).         These
contentions, therefore, are arguably reviewed for plain error. See 

not determine whether plain error review is appropriate in this case, however,
because Nava-Acosta’s claims fail even under the abuse-of-discretion standard.
See United States v. Rodriguez, 

, 525 (5th Cir. 2008).
      Although Nava-Acosta challenges the applicability of the presumption of
reasonableness to his within-guidelines sentence under § 2L1.2, he
acknowledges that this challenge is foreclosed and that he raises it only to
preserve it for possible future review.    See United States v. Mondragon-
Santiago, 

, 366-367 (5th Cir. 2009) (rejecting identical argument).
His claim of “double counting” also fails, see United States v. Duarte, 

, 529-30 (5th Cir. 2009), as does his contention that § 2L1.2 results in an
excessive sentence because it is not empirically based, see United States v.



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                                 No. 13-50363

Rodriguez, 

, 232-33 (5th Cir. 2011). Similarly, we have never been
persuaded that the Sentencing Guidelines fail to account for the nonviolent
nature of an illegal reentry offense. See United States v. Aguirre-Villa, 

, 683 (5th Cir. 2006).
      The district court considered Nava-Acosta’s efforts to obtain a lesser
sentence but concluded that a sentence at the bottom of the guidelines range
was appropriate because of the nature of Nava-Acosta’s offense and his
criminal history. His contentions regarding his mitigating factors and benign
motive are insufficient to rebut the presumption of reasonableness. See United
States v. Cooks, 

, 186 (5th Cir. 2009); United States v. Gomez-
Herrera, 

, 565-66 (5th Cir. 2008).
      The sentence imposed by the district court is AFFIRMED.




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