     Case: 15-50217      Document: 00513187812         Page: 1    Date Filed: 09/10/2015




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

                                    No. 15-50217
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        September 10, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

RICARDO MONTERO-ORNELAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-1081


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Ricardo Montero-Ornelas was convicted of illegal reentry and received a
within-guidelines sentence of 46 months of imprisonment followed by a three-
year term of supervised release.          On appeal, he argues that his sentence
was unreasonable because it was greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a). As Montero-Ornelas failed to object to
the reasonableness of his sentence below, review is for plain error.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50217     Document: 00513187812      Page: 2    Date Filed: 09/10/2015


                                  No. 15-50217

United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).          Although
Montero-Ornelas did argue that his criminal history was overrepresented
before sentence was imposed below, arguably preserving his double counting
objection, see United States v. Gomez-Herrera, 523 F.3d 554, 565 n.6 (5th Cir.
2008), his arguments fail regardless of the standard of review used.
      A sentence imposed within a properly calculated guidelines range is
accorded a presumption of reasonableness and is rebutted only if the district
court fails to consider a significant factor, gives weight to an irrelevant factor,
or clearly errs in balancing the sentencing factors. United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Montero-Ornelas concedes that his empirical basis challenge to the
presumption of reasonableness is foreclosed. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009).      We have rejected the argument that a
sentence imposed pursuant to U.S.S.G. § 2L1.2 is greater than necessary to
meet the § 3553(a) goals as a result of any double counting inherent in that
Guideline, see Duarte, 569 F.3d at 529-31, as well as the argument that illegal
reentry is merely an international trespass offense, see United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      As    to   Montero-Ornelas’s      argument      that    his    sentence     is
unconstitutionally disproportionate, “[t]he Eighth Amendment has been read
to preclude a sentence that is greatly disproportionate to the offense, because
such sentences are cruel and unusual.” United States v. Thomas, 627 F.3d 146,
160 (5th Cir. 2010) (internal quotation marks and citation omitted). Where a
within-guidelines sentence is imposed, such a challenge fails because the
Guidelines are a “convincing objective indicator of proportionality.” United
States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (internal




                                        2
    Case: 15-50217    Document: 00513187812     Page: 3   Date Filed: 09/10/2015


                                 No. 15-50217

quotation marks and citation omitted) (upholding a within-guidelines 100-
month sentence for illegal reentry).
      AFFIRMED.




                                       3
