     Case: 12-50318       Document: 00512163177         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-50318
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

APOLINAR ESTRADA-LOYA, also known as Apolinar Santillana-Castillo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2227-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Apolinar Estrada-Loya (Estrada) was sentenced to a 30-month term of
imprisonment following his guilty plea to illegal reentry of a deported alien. See
8 U.S.C. § 1326. Estrada argues that (1) his sentence, which is at the top of the
advisory guidelines range of 24 to 30 months of imprisonment, is unreasonable
because it is greater than necessary as measured by the factors identified in
18 U.S.C. § 3553(a); (2) the illegal reentry Guideline, U.S.S.G. § 2L1.2, lacks an
empirical basis and can result in a guidelines range that exceeds § 3553(a)’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50318

sentencing goals; (3) the Guideline gives heavy weight to prior convictions,
effectively double-counting the defendant’s criminal record; (4) the Guideline
overstated the seriousness of his offense, which was not evil and “was, at bottom,
an international trespass”; and (5) the guidelines range failed to account for his
personal history and characteristics.
      Estrada does not contend that the district court committed any procedural
error in imposing his sentence but, rather, argues that the sentence is
substantively unreasonable. See Gall v. United States, 552 U.S. 38, 49-51 (2007).
Review is limited to plain error because Estrada failed to challenge the
reasonableness of his sentence in the district court. 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). To show plain error, Estrada must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett, 556 U.S. at 135.
If Estrada makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
      We have consistently rejected Estrada’s “double counting” argument and
his argument that § 2L1.2 results in excessive sentences because it is not
empirically based. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). We also have rejected the “international trespass” argument that Estrada
asserts. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Estrada argues, in reliance on Kimbrough v. United States, 552 U.S. 85,
109-10 (2007), and for purposes of preserving the issue for possible further
review, that the presumption of reasonableness should not apply because the
illegal reentry Guideline lacks an empirical basis. As Estrada concedes, his
argument is foreclosed.     See Duarte, 569 F.3d at 529-31; United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). Estrada has not
shown that his sentence does not account for a factor that should receive
significant weight, gives significant weight to an irrelevant or improper factor,

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                                  No. 12-50318

or represents a clear error of judgment in balancing sentencing factors. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Estrada’s mere
disagreement with the propriety of his sentence or with the weight given to
§ 3553(a) factors does not suffice to rebut the presumption of reasonableness that
attaches to a within-guidelines sentence. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010). Because Estrada has not shown error, plain or
otherwise, the judgment of the district court is AFFIRMED.




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