     Case: 12-50275       Document: 00512087830         Page: 1     Date Filed: 12/18/2012




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

                                                                            FILED
                                                                        December 18, 2012
                                     No. 12-50275
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PABLO NEMATUTH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1449-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Pablo Nematuth pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to 70 months of imprisonment
and three years of supervised release. Nematuth argues that his sentence is
unreasonable based on the particular facts of his case and as measured by the
factors in 18 U.S.C. § 3553(a). He contends that the within-guideline sentence
vastly overstates the seriousness of his illegal reentry offense, partly because of
flaws in U.S.S.G. § 2L1.2 due to its lack of an empirical basis and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50275

double-counting of prior convictions. He asserts that the sentence is also greater
than necessary to deter future crime and protect the public because it fails to
account for his relatively short prior imprisonment, his new understanding of
the consequences he faces for illegal reentry, and his status as an illegal alien.
He argues that the district court made a clear error in judgment in balancing
§ 3553(a)’s sentencing goals. He further argues, in reliance on Kimbrough v.
United States, 552 U.S. 85, 109-10 (2007), that the presumption of
reasonableness should not apply, but he concedes that his argument is foreclosed
by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), and he raises
the argument to preserve it for possible review by the Supreme Court.
      Although Nematuth did not expressly object at sentencing to the
substantive reasonableness of his sentence, he did assert specific arguments in
favor of a variance; his arguments then are substantially identical to his
assertions on appeal. We do not need to decide whether Nematuth’s arguments
for a variance were sufficient to preserve the issues because Nematuth has not
shown that the district court’s imposition of a within-guidelines sentence of 70
months was improper under either the deferential Gall standard of review or the
plain-error review of Peltier. See Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      As he so concedes, Nematuth’s argument that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 lacks empirical
support has been rejected by this court.       See Duarte, 569 F.3d at 529-31
(rejecting the notion that this court should examine the empirical basis behind
each Guideline before applying the presumption of reasonableness). Nematuth’s
argument that his guidelines range was greater than necessary to meet
§ 3553(a)’s goals as a result of “double counting” is unavailing. The Guidelines
provide for consideration of a prior conviction for both criminal history and the
§ 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have also rejected the
argument that such double-counting necessarily renders a sentence

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                                  No. 12-50275

unreasonable. See Duarte, 569 F.3d at 529-31. We have previously rejected the
argument that illegal reentry is merely a trespass offense that is treated too
harshly under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006).
      Nematuth’s “status as a deportable alien, as an inherent element of his
crime, has already been considered by the Commission in formulating the
applicable guideline.” United States v. Garay, 235 F.3d 230, 233 (5th Cir. 2000).
Regarding his contention that his offense was not on a par with the other serious
offenses listed in § 2L1.2(b)(1)(A)(ii), such as murder, rape, and arson, the
presentence report notes that Nematuth came up behind the victim, grabbed her
pocketbook and continued to pull, causing the victim to fall to the ground, and
the district court noted the element of violence against the victim. Nematuth
does not cite any authority from this circuit requiring the district court to
consider whether the 70-month sentence was proportionate in light of his
previous sentences.
      The district court heard the arguments of Nematuth and his counsel for
a variance before imposing a sentence within the advisory guideline range. The
district court considered Nematuth’s personal history and characteristics and
the other statutory sentencing factors in § 3553(a), in particular Nematuth’s
extensive criminal history, prior to imposing a sentence within the Guidelines.
Nematuth’s within-guidelines sentence is entitled to a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Nematuth
has failed to show that the presumption should not apply. The district court did
not abuse its discretion, much less plainly err, in imposing a sentence within the
advisory guideline range. See Gall v. United States, 552 U.S. 38, 50-51 (2007).
Accordingly, the judgment of the district court is AFFIRMED.




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