     Case: 15-50785       Document: 00513456209         Page: 1     Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 15-50785                                   FILED
                                   Summary Calendar                              April 7, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

WILFREDO FRANCISCO RAMIREZ-FIGUEROA, also known as Wilfredo
Figueroa, also known as Ricardo Barrientos, also known as Wilfredo Ramirez,
also known as Israel Rosas-Ramon, also known as Wilfredo Francisco
Figueroa, also known as Wilfredo Francisco Ramirez-Figueroa, also known as
Wilfredo Figueroa Ramirez, also known as Wilfredo Francisco Figueroa-
Ramirez, also known as Wilfredo Figueroa-Ramirez, also known as Wilfredo
Ramirez Figueroa,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-135


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Wilfredo Francisco Ramirez-Figueroa challenges his 70-month sentence
imposed following his guilty-plea conviction for illegal reentry into the United


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-50785

States after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). Ramirez
contends his sentence is substantively unreasonable because it is greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). Along that line,
he asserts the court failed to consider his reentry offense was a nonviolent
crime, and his reason for returning was benign.            Additionally, Ramirez
maintains his sentence is not entitled to a presumption of reasonableness
because the illegal reentry Guideline, § 2L1.2, is not empirically based, given
that it double-counts a defendant’s criminal history. He notes that, at the time
of his prior illegal-reentry conviction, he received a 12-level sentencing
enhancement based on his prior drug offenses; however, the same convictions
now qualify for a 16-level enhancement because of a subsequent revocation
sentence, although the facts underlying those convictions have not changed.
      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 Guidelines 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, for issues preserved in district court, 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).
      Regarding Ramirez’ substantive-unreasonableness claim, his 70-month
sentence is within the advisory-Guidelines sentencing range; therefore, it is
entitled to a presumption of reasonableness. E.g., United States v. Rashad,
687 F.3d 637, 644 (5th Cir. 2012). “The presumption 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



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                                 No. 15-50785

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).
      As he concedes, Ramirez’ assertion the presumption does not apply,
based on his claim Guideline § 2L1.2 is not empirically based, is foreclosed by
our precedent. (He raises the issue only to preserve it for possible further
review.) E.g., United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009).
Additionally, our court has repeatedly rejected his assertions that: double-
counting of prior convictions necessarily renders a sentence unreasonable; and,
the Guidelines overstate the seriousness of illegal reentry. E.g., id. at 529–30;
United States v. Aguirre-Villa, 460 F.3d 681, 682–83 (5th Cir. 2006).
      Moreover, the district court examined, inter alia, Ramirez’ motive for
reentering the United States, as well as his criminal and personal history,
before pronouncing sentence. General disagreement with the propriety of his
sentence and the court’s weighing of the § 3553(a) factors is insufficient to
rebut the presumption of reasonableness. See Cooks, 589 F.3d at 186; United
States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008).
      AFFIRMED.




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