     Case: 14-50661      Document: 00512991757         Page: 1    Date Filed: 04/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50661
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 2, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,
                                                 Plaintiff−Appellee,
versus
RUBEN ESPINDOLA-PINEDA,
                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 2:13-CR-999-1




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *

       Ruben Espindola-Pineda pleaded guilty of illegal reentry and was sen-
tenced within the advisory guidelines range to 51 months of imprisonment and
three years of supervised release. On appeal he claims his sentence is substan-
tively unreasonable.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50661     Document: 00512991757      Page: 2   Date Filed: 04/02/2015


                                  No. 14-50661

      Espindola-Pineda contends that U.S.S.G. § 2L1.2 is flawed because it
lacks an empirical basis and results in the double-counting of a criminal record.
He maintains that his sentence is greater than necessary to fulfill the statutory
sentencing goals for his nonviolent offense and does not account for his difficult
childhood and his sympathetic reason for reentering the country.

      We have rejected Espindola-Pineda’s theory that § 2L1.2 results in
double-counting, United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009),
and that his sentence is greater than necessary to meet the 18 U.S.C. § 3553(a)
goals because illegal reentry is a nonviolent offense involving only “the act of
crossing a line,” United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006). We have rebuffed the argument that within-guidelines sentences calcu-
lated under § 2L1.2 should not be presumed reasonable on appeal because
§ 2L1.2 lacks an empirical basis. United States v. Ellis, 720 F.3d 220, 228 (5th
Cir.), cert. denied, 134 S. Ct. 681 (2013). Espindola-Pineda can rebut the pre-
sumption only by showing that his sentence fails to account for a factor that
should receive significant weight, gives significant weight to an improper or
irrelevant factor, or represents a clear error of judgment in balancing the fac-
tors. See United States v. Tuma, 738 F.3d 681, 695 (5th Cir. 2013), cert. denied,
134 S. Ct. 2875 (2014).

      The district court heard the parties’ positions, considered the § 3553(a)
factors, and concluded that the sentence was appropriate. Espindola-Pineda
has not shown that his difficult childhood and sympathetic motive for reentry
were factors not accounted for in the sentence that should have received great
weight. Because Espindola-Pineda has not rebutted the appellate presump-
tion that his within-guidelines sentence was reasonable or demonstrated that
it is the result of an abuse of discretion, see Gall v. United States, 552 U.S. 38,
51 (2007), the judgment is AFFIRMED.


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