     Case: 12-50016     Document: 00512029264         Page: 1     Date Filed: 10/23/2012




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

                                                                            FILED
                                                                         October 23, 2012
                                     No. 12-50016
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS ANTONIO MORENO-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-1609-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Luis Antonio Moreno-Hernandez appeals from the sentence imposed
following his guilty-plea conviction for illegal reentry.              The district court
sentenced him to a within-guidelines term of 46 months of imprisonment and to
three years of supervised release.              Moreno challenges the substantive
reasonableness of the sentence, arguing 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 Guideline, U.S.S.G. § 2L1.2, is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50016   Document: 00512029264      Page: 2   Date Filed: 10/23/2012

                                  No. 12-50016

not empirically based and resulted in the triple counting of his criminal history.
Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), he argues
that the presumption of reasonableness should not apply, but he concedes his
argument is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). He raises the argument to preserve it for possible review by the Supreme
Court. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009). He further asserts that the guideline range overstated the seriousness
of the offense and failed to account for his benign motive for reentering.
      His arguments are reviewable only for plain error because Moreno did not
make any objections to his sentence or argue in the district court that his
sentence was unreasonable. 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).
      Moreno’s argument that his within-guidelines sentence was greater than
necessary to meet § 3553(a)’s goals as a result of triple counting fails. See
Duarte, 569 F.3d at 529-31. In addition, the district court heard Moreno’s
statement concerning his reasons for reentering the United States before
imposing a sentence within the advisory guideline range. The district court
considered the statutory sentencing factors in § 3553(a) prior to imposing a
sentence within the Guidelines. Moreno’s within-guidelines sentence is entitled
to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). He 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).
      AFFIRMED.




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