     Case: 15-50359       Document: 00513328827         Page: 1     Date Filed: 01/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-50359
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           January 5, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

OSCAR GAEL HERRERA-AVILES, also known as Oscar Gael Aviles-Herrera,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:14-CR-2300-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Oscar Gael Herrera-Aviles challenges his 41-month sentence imposed
following his guilty-plea conviction for illegal reentry into the United States
after removal, in violation of 8 U.S.C. § 1326(a). As he did in district court, he
contends the sentence is unreasonable because it is greater than necessary to
satisfy the sentencing goals of 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-50359

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Herrera’s sentence is within the advisory Guidelines sentencing range;
therefore, it is entitled to a presumption of reasonableness. E.g., United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Herrera asserts the court failed
to account for his personal circumstances, and his motive for re-entering the
United States. The court, which was “in a superior position to find facts and
judge their import under § 3553(a)”, considered Herrera’s mitigating
contentions, addressed them at sentencing, and imposed a sentence within the
advisory sentencing range. Campos-Maldonado, 531 F.3d at 339. Accordingly,
Herrera’s   contentions   are   insufficient   to    rebut    the   presumption    of
reasonableness.
      Moreover, our court has repeatedly rejected Herrera’s assertion that
Guideline § 2L1.2’s double-counting of a prior conviction, in calculating a
defendant’s offense level and criminal history score, necessarily renders a
sentence unreasonable. E.g., United States v. Duarte, 569 F.3d 528, 529–31
(5th Cir. 2009).     Similarly, we have repeatedly rejected substantive-
reasonableness challenges based on the alleged lack of seriousness of illegal




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                                 No. 15-50359

reentry. E.g., United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.
2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Finally, as Herrera concedes, his contention that the presumption of
reasonableness should not be applied to his sentence because Guideline § 2L1.2
lacks an empirical basis, is foreclosed by our court’s precedent. (He raises the
issue only to preserve it for possible further review.) E.g., Duarte, 569 F.3d at
530–31; United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir.
2009).
      AFFIRMED.




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