     Case: 14-51008      Document: 00512979401         Page: 1    Date Filed: 03/24/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51008
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 24, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RICARDO RIVERA-LIMON, also known as Ricardo Reyes, also known as
Ricardo Marcelino Rivera-Limon,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-909-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Ricardo Rivera-Limon appeals the within-guidelines sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. For the first time on appeal, he challenges the
substantive reasonableness of his sentence and argues that it was greater than
necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51008

According to Rivera-Limon, U.S.S.G. § 2L1.2, the Guideline for the offense of
illegal reentry, is not empirically based and effectively double counts a
defendant’s criminal record.      He also argues that the guidelines range
overstated the seriousness of his non-violent reentry offense and that his
sentence does not account for his personal history and characteristics,
specifically, his motive for returning to the United States.
      This court assesses the substantive reasonableness of a sentence
imposed by the district court for an abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007). Where, as here, a defendant fails to object in the district
court to the reasonableness of the sentence, we review for plain error. United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).
      The district court must correctly calculate the advisory guidelines range
and make an individualized assessment based on the facts of the case in light
of § 3553(a). Gall, 552 U.S. at 49-50. It then must impose a sentence sufficient,
but not greater than necessary, to comply with the goals of § 3553(a)(2).
§ 3553(a). “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”          United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
      Rivera-Limon argues that we should not apply the presumption of
reasonableness to his sentence that was calculated under § 2L1.2 because this
Guideline is not empirically based; he recognizes, however, that his claim is
foreclosed by circuit precedent and raises the issue in order to preserve it for
further review. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009).
We have also rejected arguments that double-counting necessarily renders a
sentence unreasonable, see Duarte, 569 F.3d at 529-30, and that the Guidelines
overstate the seriousness of illegal reentry because it is simply a non-violent



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                                 No. 14-51008

international trespass offense, United States v. Aguirre-Villa, 460 F.3d 681,
682-83 (5th Cir. 2006).
      The district court in this case considered Rivera-Limon’s explanation for
illegally reentering the United States, concluded that the applicable guidelines
range was reasonable, and imposed a sentence within that range. Rivera-
Limon’s argument that the sentence does not reflect his personal history and
characteristics does not establish that his sentence fails to account for a
§ 3553(a) factor, “gives significant weight to an irrelevant or improper factor,
or [ ] represents a clear error of judgment in balancing the factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The district court was in a
superior position to find facts and assess their importance under § 3553(a), and
this court will not, as Rivera-Limon seems to urge, reweigh the district court’s
assessment of the § 3353(a) factors. See Gall, 552 U.S. at 51-52; Campos-
Maldonado, 531 F.3d at 339. Rivera-Limon’s assertions are insufficient to
rebut the presumption of reasonableness. See Duarte, 569 F.3d at 529-30;
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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