     Case: 11-50789     Document: 00511865065         Page: 1     Date Filed: 05/23/2012




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

                                                                            FILED
                                                                           May 23, 2012
                                     No. 11-50789
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODRIGO QUINTERO-RUACHO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:11-CR-68-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Rodrigo Quintero-Ruacho appeals the sentence
imposed following his guilty-plea conviction for illegal reentry after deportation.
The district court sentenced him to a within-guidelines term of 70 months of
imprisonment and three years of supervised release.                      Quintero-Ruacho
challenges the substantive reasonableness of the sentence, insisting that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50789    Document: 00511865065      Page: 2   Date Filed: 05/23/2012

                                  No. 11-50789

Guideline, U.S.S.G. § 2L1.2, is not empirically based and double counts the
defendant’s criminal history. He argues, in reliance on Kimbrough v. United
States, 552 U.S. 85, 109-10 (2007), that the presumption of reasonableness
should not apply, but he concedes that his argument is foreclosed by United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and that he
raises the argument to preserve it for possible review by the Supreme Court. He
further asserts that the guideline range overstates the seriousness of the offense,
which he categorizes as a form of trespass, and fails to account for his benign
motive for reentering.
      As Quintero-Ruacho did not make any objections to his sentence or
contend in the district court that his sentence was unreasonable, our review is
for plain error only. See Puckett v. United States, 556 U.S. 129, 134-35 (2009);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (requiring objection
to substantive unreasonableness of sentence to preserve error).
      Quintero-Ruacho’s contention that his guidelines range was greater than
necessary to meet § 3553(a)’s goals as a result of double counting is unavailing.
The Guidelines provide for consideration of a prior conviction for both criminal
history and the § 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have
rejected the argument that such double counting necessarily renders a sentence
unreasonable. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
We have also rejected the argument that illegal reentry is merely a trespass
offense that is treated too harshly under § 2L1.2. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Before it imposed a sentence within the advisory guideline range, the
district court heard Quintero-Ruacho’s statement concerning his reasons for
reentering the United States. The court considered the statutory sentencing
factors in § 3553(a) prior to imposing a sentence within the Guidelines.
Quintero-Ruacho’s within-guidelines sentence is entitled to a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Quintero-

                                        2
   Case: 11-50789   Document: 00511865065     Page: 3   Date Filed: 05/23/2012

                                 No. 11-50789

Ruacho has failed to show that the presumption should not apply. The district
court did not abuse its discretion, much less plainly err, in imposing a sentence
within the advisory guideline range. See Gall v. United States, 552 U.S. 38, 50-
51 (2007). The judgment of the district court is AFFIRMED.




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