     Case: 14-50494      Document: 00512973454         Page: 1    Date Filed: 03/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50494
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 18, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FELIX ANTONIO JIMENEZ-QUELIX, also known as Harly Canales,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-48-1


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Felix Antonio Jimenez-Quelix (Jimenez) appeals the 57-month within-
guidelines sentence imposed following his guilty plea conviction for illegal
reentry following deportation in violation of 8 U.S.C. § 1326. He contends that
the sentence is substantively unreasonable because it was greater than
necessary to satisfy the sentencing goals in 18 U.S.C. § 3553(a). He argues
that the guidelines range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50494     Document: 00512973454      Page: 2    Date Filed: 03/18/2015


                                  No. 14-50494

U.S.S.G. § 2L1.2 is not empirically based and effectively double counts a
defendant’s criminal record. Jimenez also contends that the range overstated
the seriousness of his nonviolent reentry offense and failed to account for his
personal history and characteristics.
      Because Jimenez did not argue in the district court that his sentence was
unreasonable, his argument is reviewed for plain error only. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); see also Puckett v. United States,
556 U.S. 129, 135 (2009). He acknowledges that his failure to object to his
sentence in the district court results in the application of the plain error
standard of review, conceding that the issue is foreclosed by Peltier; however,
he notes that the circuits are divided on whether a failure to object to the
reasonableness of the sentence upon its imposition requires plain error review,
and he seeks to preserve that issue for possible review by the Supreme Court.
      As Jimenez’s sentence was within the guidelines range, a presumption
of reasonableness applies. See United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009).     To rebut the presumption of reasonableness, a
defendant must show that his sentence fails to take into account a factor that
should receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing the
sentencing factors. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      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, Jimenez
argues that the presumption of reasonableness should not apply because the
illegal reentry Guideline lacks an empirical basis. As Jimenez concedes, his
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67.




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                                No. 14-50494

      We have consistently rejected “double counting” arguments and
arguments that § 2L1.2 results in excessive sentences because it is not
empirically based. See Duarte, 569 F.3d at 529-31. We also have rejected the
“international trespass” argument that Jimenez asserts. See United States v.
Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      The district court considered the § 3553(a) factors, including Jimenez’s
personal history, before imposing the sentence. Jimenez’s motives for reentry
are not sufficient to rebut the presumption of reasonableness. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).     He has not
shown that the district court failed to give proper weight to his arguments or
any particular § 3553(a) factor and thus fails to demonstrate that the district
court plainly erred. See Cooks, 589 F.3d at 186. The judgment of the district
court is AFFIRMED.




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