     Case: 11-50014     Document: 00511627446         Page: 1     Date Filed: 10/10/2011




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

                                                                            FILED
                                                                         October 10, 2011
                                     No. 11-50014
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

OMAR RAMIREZ-GUERRA, also known as Omar Guerra,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-1650-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
        Omar Ramirez-Guerra appeals the 46-month within-guidelines sentence
imposed following his guilty plea conviction for illegal reentry into the United
States. He argues that the sentence is greater than necessary to meet the goals
of 18 U.S.C. § 3553(a); that he returned to the United States to take care of his
wife’s twin sons while their infant daughter was in the hospital; that his wife
has decided to relocate to Mexico when he is released from prison; that the
16-level increase to his offense level was greater than necessary because his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50014      Document: 00511627446   Page: 2   Date Filed: 10/10/2011

                                   No. 11-50014

prior robbery offense was not violent; and that the guidelines overstated the
seriousness of his prior illegal reentry offense. Ramirez-Guerra raised the above
arguments for a lesser sentence in the district court and, therefore, he preserved
for appeal his challenge to the substantive reasonableness of the sentence. See
United States v. Rodriguez, 523 F.3d 519, 526 n.1 (5th Cir. 2008).
      Ramirez-Guerra further contends that the presumption of reasonableness
should not apply to the sentence because U.S.S.G. § 2L1.2 lacked an empirical
basis and double-counted his criminal history, because the “fast track” program
results in unwarranted sentencing disparities, and because his illegal reentry
was merely a trespass offense. Because he did not raise these arguments in the
district court, review is limited to plain error. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009).
      The 46-month within-guidelines sentence imposed by the district court is
substantively reasonable.       After considering the Presentence Report and
Ramirez-Guerra’s arguments, the district court made an individualized
sentencing decision based on the facts of the case and the § 3553(a) factors. We
have previously rejected the arguments concerning double-counting and that
illegal reentry is merely a trespass offense.     See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009); see United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006).       Ramirez-Guerra concedes that his arguments
concerning the lack of an empirical basis and the fast track program are also
foreclosed. See United States v. Gomez-Herrera, 523 F.3d 554, 562-63 (5th Cir.
2008); see also United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir.
2009). Ramirez-Guerra’s “disagreement with the propriety of the sentence
imposed does not suffice to rebut the presumption of reasonableness that
attaches to a within-guidelines sentence.” United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010).
      AFFIRMED.



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