Case: 15-50256      Document: 00513274959         Page: 1    Date Filed: 11/17/2015




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

                                                                                   FILED
                                    No. 15-50256                           November 17, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GABRIEL RIVERA-GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-808-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Gabriel Rivera-Gonzalez pleaded guilty to being found illegally present
in the United States after deportation. See 8 U.S.C. § 1326(a) and (b). On
appeal, he argues that his 57-month sentence is substantively unreasonable
because U.S.S.G. § 2L1.2 double counts prior convictions and lacks an
empirical basis. He also avers that his sentence is greater than necessary to
promote respect for the law, provide just punishment, deter future criminal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50256

conduct, or protect the public. According to Rivera-Gonzalez, the district court
failed to give appropriate weight to his personal history and characteristics,
specifically, that his prior convictions were primarily minor traffic infractions,
that he came to the United States for work, and that he has spent most of his
adult life in the United States.
      We review the substantive reasonableness of Rivera-Gonzalez’s sentence
for abuse of discretion. See United States v. Cedillo-Narvaez, 

, 401
(5th Cir.), cert. denied, 

(2014).     Because the district court
imposed a within-guidelines sentence, we presume the sentence is reasonable.
See United States v. Campos-Maldonado, 

, 338 (5th Cir. 2008).
Although Rivera-Gonzalez asserts that the presumption should not apply
because § 2L1.2 is not empirically based, he concedes that this argument is
foreclosed by United States v. Mondragon-Santiago, 

, 366-67 (5th
Cir. 2009).
      We have rejected the arguments that § 2L1.2 improperly double counts
prior convictions, that its lack of an empirical basis necessarily renders a
sentence under it unreasonable, and that the guideline overstates the
seriousness of what is essentially an international trespass. United States v.
Duarte, 

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

, 366-67 (5th Cir. 2009); United States v. Juarez-Duarte,

, 212 (5th Cir. 2008).
      The district court sentenced Rivera-Gonzalez within the guidelines
range after listening to his mitigating arguments.             Rivera-Gonzalez’s
arguments amount to a disagreement with the balance among the sentencing
factors that the district court struck, but this court will not reweigh those
factors. See United States v. McElwee, 

, 344-45 (5th Cir. 2011).
Rivera-Gonzalez’s reliance on the Guidelines’ alleged overstatement of the



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                                  No. 15-50256

seriousness of the offense and the district court’s rejection of the mitigating
facts, such as his history of living in the United States and his motive of
returning to work, fail to rebut the presumption of reasonableness attached to
his within guidelines sentence. See United States v. Gomez-Herrera, 

, 565-66 (5th Cir. 2008). Rivera-Gonzalez has failed to demonstrate that
the district court did not consider a factor that should have received significant
weight, gave significant weight to a factor it should have discounted, or made
a clear error of judgment when it balanced the relevant factors. See United
States v. Cooks, 

, 186 (5th Cir. 2009). He has not rebutted the
presumption that his within-guidelines sentence is reasonable. See Campos-

.
      The judgment of the district court is AFFIRMED.




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