     Case: 09-50269     Document: 00511014870          Page: 1    Date Filed: 01/28/2010




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

                                                  FILED
                                                                          January 28, 2010
                                     No. 09-50269
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NICOLAS ARROYO-CARBAJAL, also know as Nene Billarruel,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:09-CR-4-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Nicolas Arroyo-Carbajal (Arroyo) appeals the 86-month sentence imposed
by the district court following entry of a guilty plea to a charge under 8 U.S.C.
§ 1326 for being illegally present in the United States. He argues that his
sentence is substantively unreasonable under 18 U.S.C. § 3553(a) because
U.S.S.G. § 2L1.2 is not empirically based and gives excessive weight to a
defendant’s prior convictions in setting the offense level, thereby effectively
double-counting the defendant’s criminal record via his offense level and his

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50269      Document: 00511014870 Page: 2           Date Filed: 01/28/2010
                                   No. 09-50269

criminal history score. He contends that the sentence fails to take into account
his benign motive for returning to the United States.              Arroyo asserts, in
addition, that his sentence is greater than necessary to achieve the goals of
§ 3553(a). Although Arroyo acknowledges that plain error review applies, he has
preserved the issue whether a failure to object to the reasonableness of a
sentence upon its imposition requires plain error review. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       To show plain error, Arroyo must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009).        If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
       We have rejected Arroyo’s argument that Kimbrough v. United States, 552
U.S.   85,   109-10    (2007),   dictates   that   the   appellate    presumption       of
reasonableness we accord to sentences imposed within a properly calculated
advisory sentencing guidelines range should not apply to sentences that were
calculated under Guidelines not derived from empirical data and national
experience. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also rejected
Arroyo’s double-counting argument. See Duarte, 569 F.3d at 529-31 & n.11;
Mondragon-Santiago, 564 F.3d at 366-67.
       The record shows that the district court based Arroyo’s sentence on the
advisory sentencing guidelines range, the information in the presentence report,
and the § 3553(a) factors. The district court judge implicitly considered the
arguments     Arroyo    presented     at    sentencing   and     determined    that     a
within-guidelines sentence was appropriate. Arroyo has not shown error, much
less plain error, in the district court’s imposition of sentence, and he has not
rebutted the presumption that his within-guidelines sentence is reasonable. See

                                            2
   Case: 09-50269   Document: 00511014870 Page: 3       Date Filed: 01/28/2010
                                No. 09-50269

Gall v. United States, 552 U.S. 38, 50-51 (2007); Rita v. United States, 552 U.S.
338 (2007).
      AFFIRMED.




                                       3
