     Case: 11-50198     Document: 00511639973         Page: 1     Date Filed: 10/21/2011




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

                                                                            FILED
                                                                         October 21, 2011
                                     No. 11-50198
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAMON ROSALES GOMEZ, also known as Daniel Montoya Esparza,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2662-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Ramon Rosales Gomez appeals his sentence following his guilty plea to
illegally reentering the United States after deportation and following a
conviction for an aggravated felony. The district court sentenced Gomez to 41
months of imprisonment, a sentence at the bottom of the Sentencing Guidelines
range. Although Gomez entered into a plea agreement wherein he waived his
right to appeal his sentence, the Government has not relied on the waiver.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50198

Accordingly, we will not enforce it. See United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006).
      By raising arguments at the sentencing hearing that the district court
clearly viewed as challenges to the unreasonableness of his sentence, Gomez
arguably preserved his reasonableness challenge for appellate review. See
United States v. Rodriguez, 523 F.3d 519, 526 n.1 (5th Cir. 2008) (noting that the
factual and legal arguments on appeal had been presented in the district court
and concluding that the “ordinary standard of review” applied). We need not
determine whether plain error review is appropriate, however, because Gomez’s
arguments fail under either standard of review.
      We “consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). “When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the 18 U.S.C.
§ 3553(a) factors, [this court] will give great deference to that sentence and will
infer that the judge has considered all the factors for a fair sentence set forth in
the Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (internal
quotation marks and citation omitted). “A discretionary sentence imposed
within a properly calculated guidelines range is presumptively reasonable.” Id.
“The presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010).
      This court has rejected Gomez’s argument that application of U.S.S.G.
§ 2L1.2 renders a sentence unreasonable because it effectively results in the
double counting of a defendant’s criminal history. See United States v. Duarte,
569 F.3d 528, 529-31 (5th Cir. 2009). Moreover, as noted by the district court,

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                                 No. 11-50198

Gomez’s motive for returning does not outweigh his criminal history, in
particular, the egregious nature of the prior burglary offense. Gomez thus has
not shown that the district court made a clear error in balancing the sentencing
factors set forth in § 3553, nor has he rebutted the presumption of
reasonableness that attaches to his within-Guideline sentence. Accordingly, he
has not shown error, plain or otherwise, in his sentence. See Cooks, 589 F.3d at
186.
       AFFIRMED.




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