     Case: 11-51065     Document: 00512013209         Page: 1     Date Filed: 10/09/2012




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

                                                                            FILED
                                                                          October 9, 2012
                                     No. 11-51065
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

NILSON GABRIEL RIVERA-HERNANDEZ, also known as Nilson Gabriel
Hernandez-Pavon,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-515-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Nilson Gabriel Rivera-Hernandez appeals his 53-month within-Guidelines
guilty-plea sentence for illegal reentry, claiming his sentence is greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He maintains the
court: (1) failed to begin the sentencing analysis at the bottom of the advisory
Guidelines sentencing range; and (2) erroneously considered three prior minor
convictions that received no criminal history points, and an assault conviction


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51065

that resulted in a 16-level offense-level increase. Rivera asserts that balancing
the § 3553(a) factors properly would have resulted in a sentence at the low end
of the sentencing range because his offense was only trespassory, he did not
resist arrest, and he received shorter sentences for prior offenses. Similarly, he
claims his sentence is not entitled to a presumption of correctness because the
illegal reentry Guideline, U.S.S.G. § 2L1.2, is not based on empirical data and
national experience.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Rivera’s failure to object at sentencing to the reasonableness of his
sentence triggers plain error review. United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). (He objects to that limited standard of review only to
preserve the issue for possible further review.) Among the factors necessary for
plain error, he must show a clear or obvious error. He fails to do so.
      Rivera’s empirical-data contention is foreclosed by our precedent. E.g.,
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). He raises the
issue only to preserve it for possible future review. Also rejected is the assertion
that a sentence under Guideline § 2L1.2 is unreasonable because illegal reentry
is a mere trespass offense. E.g., United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006).
      Because Rivera’s sentence is within the applicable advisory sentencing
range, it is presumed reasonable. E.g., United States v. Newson, 515 F.3d 374,
379 (5th Cir. 2008). His disagreement with the propriety of his sentence and the

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                                  No. 11-51065

weight accorded to the § 3553(a) factors is insufficient to rebut that presumption.
E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He challenges
the presumption only to preserve the issue for possible further review.
      AFFIRMED.




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