     Case: 13-51018      Document: 00512769004         Page: 1    Date Filed: 09/15/2014




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

                                    No. 13-51018
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                       September 15, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff–Appellee,

v.

RAUL CORTES-GUTIERREZ,

                                                 Defendant–Appellant.


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-1030


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Raul Cortes-Gutierrez (Cortes) appeals his bottom-of-the-guideline-
range sentence of 57 months of imprisonment imposed following his guilty plea
conviction for illegal reentry following deportation. Cortes argues that his
sentence is unreasonable because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, overstates the seriousness of the offense and fails to take into account
his personal circumstances.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51018         Document: 00512769004         Page: 2     Date Filed: 09/15/2014


                                         No. 13-51018

       This court reviews the substantive reasonableness of a sentence for an
abuse of discretion. 1 “A discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.” 2
       As Cortes concedes, his argument that this court should not apply the
presumption of reasonableness because § 2L1.2 is not empirically based is
foreclosed by this court; however, he wishes to preserve the issue for possible
further review by the Supreme Court. 3                 The court has also rejected his
arguments that double-counting his prior convictions necessarily renders a
sentence unreasonable and that the Guidelines overstate the seriousness of
illegal reentry because it is simply a nonviolent international trespass offense. 4
       The district court considered Cortes’s mitigating arguments, including
his problem with a drug addiction, and reasonably determined that his drug-
trafficking activities diminished the validity of the addiction argument.
Cortes’s criminal history supported the district court’s rejection of Cortes’s
assertion that a lesser sentence would have been a sufficient deterrent. Nor
was Cortes’s alleged benign motive to support his family sufficient to justify a
lower sentence or to rebut the presumption of reasonableness. 5
       Cortes has not rebutted the presumption of reasonableness or shown
that the district court abused its discretion in evaluating the sentencing
factors. 6 The sentence is substantively reasonable and, thus, is AFFIRMED. 7


       1   United States v. Cisneros-Gutierrez, 517 F.3d 751,764 (5th Cir. 2008).
       2   United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (per curiam).
       3   See United States v. Duarte, 569 F.3d 528, 528-31 (5th Cir. 2009).
       4 See id. at 529-30; United States v. Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir. 2006)
(per curiam).
       5   See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
       6   See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
       7   See Cisneros-Gutierrez, 517 F.3d at 764.


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