     Case: 14-50707      Document: 00512968310         Page: 1    Date Filed: 03/13/2015




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

                                    No. 14-50707
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           March 13, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

AGUSTIN MIRAMONTES-MUNIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-393


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Agustin Miramontes-Muniz appeals the sentence imposed for his guilty
plea conviction of illegal reentry following deportation in violation of 8 U.S.C.
§ 1326.     He contends that the 70-month within-guidelines sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a). According to Miramontes-
Muniz, the guidelines range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50707     Document: 00512968310     Page: 2    Date Filed: 03/13/2015


                                  No. 14-50707

U.S. Sentencing Guideline § 2L1.2 is not empirically based and effectively
double counts a criminal record. He also urges that the 70-month sentence
overstated the seriousness of his non-violent reentry offense and failed to
account for his personal history and characteristics, specifically, that he
returned to the United States because he had suffered violence in Mexico and
because his mother, sisters, and daughter live in the United States.
      We consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). When, as here, the district court imposes a sentence within a properly
calculated guidelines range, we “give great deference to that sentence” and
“infer that the judge has considered all the factors for a fair sentence set forth
in the Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)
(internal quotation marks and citation omitted). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.
      In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
and for purposes of preserving the issue for possible further review,
Miramontes-Muniz argues that the presumption of reasonableness should not
apply because § 2L1.2 lacks an empirical basis.            As Miramontes-Muniz
concedes, his argument is foreclosed. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009).        We also have rejected arguments that
double-counting necessarily renders a sentence unreasonable, see Duarte, 569
F.3d at 529-31, and that the Guidelines overstate the seriousness of illegal
reentry because it is only a non-violent international-trespass offense, see
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).



                                        2
    Case: 14-50707     Document: 00512968310   Page: 3     Date Filed: 03/13/2015


                                No. 14-50707

      The   district   court   considered   the    §     3553(a)   factors   and
Miramontes-Muniz’s request for a downward variance and concluded that a
sentence within the guidelines range was sufficient, but not greater than
necessary, to satisfy the goals in § 3553(a). Miramontes-Muniz’s assertions
that § 2L1.2’s lack of an empirical basis, the double-counting, the non-violent
nature of his offense, and his motive for reentering justified a lower sentence
are insufficient to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Miramontes-Muniz
has failed to show that the within-guidelines sentence is substantively
unreasonable. See Campos-Maldonado, 531 F.3d at 339.
      The judgment of the district court is AFFIRMED.




                                      3
