     Case: 09-50626     Document: 00511086048          Page: 1    Date Filed: 04/20/2010




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

                                                 FILED
                                                                            April 20, 2010
                                     No. 09-50626
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WILKEN RUIZ-GUIFARRO, also known as Andres Gomez-Ruiz,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-66-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Wilken Ruiz-Guifarro appeals his sentence following his guilty plea
conviction for illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. Ruiz-Guifarro was sentenced within his advisory guidelines range to 77
months of imprisonment and three years of supervised release. Ruiz-Guifarro
contends that his sentence is not entitled to a presumption of reasonableness
because U.S.S.G. § 2L1.2, the Guideline applicable to violations of § 1326, is not
empirically based and double-counts a defendant’s criminal history.                          As

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50626      Document: 00511086048 Page: 2     Date Filed: 04/20/2010
                                   No. 09-50626

acknowledged by Ruiz-Guifarro, this argument is foreclosed. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Ruiz-Guifarro also contends that his sentence should be vacated as
substantively unreasonable because it was based in part on § 2L1.2 and was
greater than necessary to meet the requirements of 18 U.S.C. § 3553(a).
Regarding § 3553(a), Ruiz-Guifarro contends that his sentence overstated the
seriousness of his illegal reentry offense and failed to properly reflect his
personal history and characteristics. The substantive reasonableness of Ruiz-
Guifarro’s sentence is reviewed for plain error because he did not object on that
ground in the district court. See United States v. Whitelaw, 580 F.3d 256, 259-60
(5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Ruiz-Guifarro’s appellate arguments fail to establish that his sentence was the
result of error, much less plain error. See Gall v. United States, 552 U.S. 38, 51
(2007); Duarte, 569 F.3d at 529-31 & n.11; United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006).
      AFFIRMED.




                                        2
