     Case: 12-50278       Document: 00512101220         Page: 1     Date Filed: 01/04/2013




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

                                                                            FILED
                                                                          January 4, 2013
                                     No. 12-50278
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SERGIO VELEZ-RIVAS, also known as Andrez Gomez, also known as Sergio
Rivas,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-3034-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Sergio Velez-Rivas (Velez) has appealed the sentence imposed by the
district court following his guilty plea conviction of one count of being found
unlawfully present in the United States following removal. The district court
imposed a 70-month sentence of imprisonment, which was at the bottom of the
Guideline range, and a three-year term of supervised release.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50278

      Velez argues that his sentence is substantively unreasonable because it is
greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
He does not suggest that the district court committed a procedural error in
calculating the applicable guideline range, but he argues that the illegal reentry
guideline, U.S.S.G. § 2L1.2, is flawed because it double counts the defendant’s
criminal history. He contends that the Guidelines overstate the seriousness of
his illegal reentry offense, which he characterizes as nothing more than an
international trespass. Finally, Velez argues that the Guidelines did not account
for his personal history and circumstances and that the district court did not
give enough weight to these factors.
      The parties agree that plain error review applies; however, they do not
control the standard of review. See United States v. Peltier, 505 F.3d 389, 391
& n.1 (5th Cir. 2007). We need not determine whether plain error review is
applicable because, as discussed below, Velez’s arguments fail even under the
abuse-of-discretion standard. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
      Because the district court sentenced Velez within a properly calculated
Guideline range, its sentence is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The presumption of reasonableness
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).
      The Sentencing Guidelines provide for consideration of a prior conviction
for both criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2,
comment. (n.6). We have rejected the argument that such double counting
necessarily renders a sentence unreasonable. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the argument that the
Guidelines overstate the seriousness of illegal reentry because it is simply an

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                                  No. 12-50278

international trespass offense. See United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006). Further, Velez’s benign motive for illegally returning to this
country fails to establish that the within-guidelines sentence chosen by the
district court is unreasonable. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008).
      The district court considered Velez’s sentencing arguments and his
reasons for returning to the United States before denying Velez’s request for a
downward variance and imposing a sentence at the bottom of the advisory
guideline range. “[T]he sentencing judge is in a superior position to find facts
and judge their import under § 3553(a) with respect to a particular defendant.”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Given
the deference owed to the district court’s sentencing determination, see Gall v.
United States, 552 U.S. 38, 51-52 (2007), Velez’s assertion that his sentence is
unreasonable in light of the § 3553(a) factors fails to rebut the presumption that
the sentence is reasonable. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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