     Case: 12-51239       Document: 00512391477         Page: 1     Date Filed: 09/30/2013




                     REVISED SEPTEMBER 30, 2013

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

                                                                          FILED
                                                                      September 30, 2013
                                     No. 12-51239
                                   Summary Calendar                      Lyle W. Cayce
                                                                              Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAUL BARAJAS-RAMIREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-2322-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raul Barajas-Ramirez (Barajas) pleaded guilty to one count of illegal
reentry following removal. After hearing arguments from Barajas for a sentence
at the low end of the guidelines range, the district court imposed a sentence of
96 months in prison, at the top of the range. Barajas made no objection. He now
challenges his sentence as unreasonable.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51239

      We ordinarily review sentences for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 52 (2007). However, as
Barajas concedes, the failure to object to the reasonableness of the sentence
imposed results in plain error review. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Nevertheless, even under the ordinary standard, Barajas
is not entitled to relief.
      When, as here, a district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a rebuttable presumption
of reasonableness. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Barajas asserts that his sentence is unreasonable because the illegal reentry
Guideline (U.S.S.G. § 2L1.2) lacks an empirical basis, gives too much weight to
prior convictions in determining the offense level, and results in double-counting.
We have rejected similar challenges. United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009). In a similar vein, Barajas argues that § 2L1.2 lacks an
empirical basis such that the presumption of reasonableness should not apply.
As he properly concedes, this argument is foreclosed. See id.; see also United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (holding
same in plain error context). Barajas argues that his sentence overstates the
seriousness of his unlawful entry offense because, he contends, it is a non-violent
“international trespass.” We have rejected such arguments. See United States
v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      Next, Barajas asserts that the guidelines range did not account for his
personal circumstances, namely, that he was brought to the United States at 15;
that he attended high school in Seattle and worked there as a cook for years;
that at one time, he obtained permanent legal resident status; that his substance
abuse issues resulted in his removal from the United States; and that he
returned to the United States to be with his family.           The district court
considered Barajas’s arguments but concluded that, given Barajas’s lengthy
criminal history, a sentence at the top of the range was required to satisfy the

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                                  No. 12-51239

sentencing goals under 18 U.S.C. § 3553(a) of providing just punishment,
promoting respect for the law, deterring future crimes, and protecting the public.
Barajas’s mere disagreement with the weight the court gave the various
§ 3553(a) factors is not enough to rebut the presumption of reasonableness. See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.




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