     Case: 13-50789      Document: 00512584658         Page: 1    Date Filed: 04/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-50789
                                   c/w No. 13-50798
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                             April 3, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

MARIO GRANJENO-ESPANOL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-406-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Mario Granjeno-Espanol appeals the 46-month within-guidelines
sentence imposed following his conviction for illegal reentry into the United
States after deportation.        He argues that the sentence is substantively
unreasonable and greater than necessary to meet the goals of 18 U.S.C.
§ 3553(a). He asserts that the Guidelines failed to account for his personal



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50789     Document: 00512584658      Page: 2   Date Filed: 04/03/2014


                                  No. 13-50789
                                c/w No. 13-50798

history and circumstances, including that he supports his five children and his
two elderly parents, that he has mainly lived a law abiding life, and that he
has only one prior conviction for which he has served his sentence. He contends
that U.S.S.G. § 2L1.2 double counted his prior conviction and overstated the
seriousness of his criminal history. He maintains that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 is not
supported by empirical data, but acknowledges that the argument is foreclosed
by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      Although Granjeno-Espanol acknowledges that this court applies plain
error review when a defendant fails to object to the reasonableness of the
sentence, he contends that the proper standard of review is abuse of discretion.
Because he did not object to the substantive reasonableness of the sentence in
the district court, review is limited to plain error. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007).
      The district court considered Granjeno-Espanol’s request for a
downward variance and ultimately determined that a sentence at the bottom
of the advisory guidelines range was appropriate under the circumstances and
the § 3553(a) factors. Granjeno-Espanol’s arguments that that § 2L1.2 lacks
an empirical basis, double counts his criminal history, and overstates the
seriousness of his criminal history, and that the Guidelines did not take into
account his personal history and characteristics, 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, Granjeno-Espanol has failed to show that his 46-month
within-guidelines sentence is substantively unreasonable, and there is no
reversible plain error.
      AFFIRMED.


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