     Case: 13-50017       Document: 00512401698         Page: 1     Date Filed: 10/09/2013




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

                                                                            FILED
                                                                          October 9, 2013
                                     No. 13-50017
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN CHAVEZ-ALDABA, also known as Isais Rivera-Aguilerra,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CR-390-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Juan Chavez-Aldaba appeals the 36-month, non-
guidelines sentence imposed following his guilty plea conviction for illegally
reentering the United States after having been removed. His sole claim on
appeal is that his sentence is substantively unreasonable.
       Because Chavez-Aldaba does not contend that the district court committed
any procedural error in imposing the sentence, our review is confined to whether
the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-50017     Document: 00512401698      Page: 2   Date Filed: 10/09/2013

                                  No. 13-50017

51 (2007). After United States v. Booker, 543 U.S. 220 (2005), sentences are
ordinarily reviewed for substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010).
Because Chavez-Aldaba failed to challenge the reasonableness of his sentence
on the same grounds that he raises on appeal, however, we review the
substantive reasonableness of his sentence for plain error. See United States v.
Dunigan, 555 F.3d 501, 506 (5th Cir. 2009); United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).
      Chavez-Aldaba argues that the illegal reentry Guideline, U.S.S.G. § 2L1.2
— which he contends has had a “problematic development” — double-counted
his criminal history and overstated the seriousness of his illegal reentry offense,
resulting in a guidelines range that was greater than necessary to satisfy the
sentencing goals of § 3553(a). Any argument that § 2L1.2 is not empirically
based is foreclosed by this court’s precedent. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). Further, we have repeatedly rejected the
arguments that a sentence imposed pursuant to § 2L1.2 is greater than
necessary to meet § 3553(a)’s goals as a result of any double counting inherent
in that Guideline, see id. at 529-31, and that § 2L1.2 overstates the seriousness
of illegal reentry because it is an international trespass offense, see United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). In addition, although
Chavez-Aldaba contends that there were mitigating factors for his reentry into
the United States, the district court did not fail to take those factors into
account.
      Accordingly, because we find no error, plain or otherwise, the district
court’s judgment is AFFIRMED.




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