     Case: 11-51103     Document: 00511913243         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012
                                     No. 11-51103
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE EVERARDO-ABREGO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1834-1


Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Everardo-Abrego appeals following his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b). He was sentenced to 55
months of imprisonment and three years of supervised release. He contends
that the 55-month sentence is substantively unreasonable because it is greater
than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a).
        Because the sentence was within the properly calculated guidelines range
of 46 to 57 months of imprisonment, it is entitled to a presumption of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51103

reasonableness. See United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir. 2008). “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 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 district court determined that a sentence at the high end of the
guidelines range was appropriate, especially in light of Everardo-Abrego’s
criminal record. Everardo-Abrego has not shown a clear error of judgment on
the district court’s part in balancing the § 3553(a) factors. Id. He has thus failed
to rebut the presumption of reasonableness that we apply to his within-
guidelines sentence. See Campos-Maldonado, 531 F.3d at 338. The district
court committed no error, plain or otherwise, as to the substantive
reasonableness of the sentence.
      Everardo-Abrego raises two additional arguments, which he acknowledges
are foreclosed by our precedent, to preserve for further review. He argues that
an objection to the substantive reasonableness of a sentence is not required to
preserve review. We have held that a defendant’s failure to object at sentencing
to the reasonableness of his sentence triggers plain error review. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, we need not
determine whether plain error review is appropriate because Everardo-Abrego’s
arguments fail even under the ordinary standard of review.
      He also argues that the presumption of reasonableness should not be
applied to his sentence because U.S.S.G. § 2L1.2, the illegal reentry Guideline,
double counts prior convictions without an empirical basis. We have consistently
rejected Everardo-Abrego’s argument, concluding that Kimbrough v. United
States, 552 U.S. 85 (2007), does not question the presumption of reasonableness
and does not require district or appellate courts to independently analyze the
empirical grounding behind each individual guideline. See United States v.

                                         2
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                                No. 11-51103

Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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