     Case: 12-50471       Document: 00512222549         Page: 1     Date Filed: 04/26/2013




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

                                                                            FILED
                                                                           April 26, 2013
                                     No. 12-50471
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VICTOR HUGO TORRES-VARGAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-3096-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Victor Hugo Torres-Vargas asserts that his below-guidelines 60-month
sentence for illegal reentry is substantively unreasonable. According to Torres-
Vargas, the guidelines sentencing range was unreasonably high because the
guideline was not empirically based and it double-counted his criminal history.
He further asserts that the guidelines range was unreasonably high because his
offense amounted to a non-violent trespass offense. In addition, Torres-Vargas
contends that his sentence did not account for his history and characteristics,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50471    Document: 00512222549      Page: 2   Date Filed: 04/26/2013

                                  No. 12-50471

including that he entered the United States as a seven-year-old child, that he
lived here for forty years, and that he returned to see his family. Finally, he
contends that the below-guidelines sentence overstated his risk of recidivism and
his danger to the community because his past crimes were the result of
substance abuse that has ended.
      We review the substantive reasonableness of Torres-Vargas’s sentence for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is not rendered unreasonable by the lack of empirical basis for the
illegal reentry guideline or by any double-counting of Torres-Vargas’s criminal
history. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We
also find no merit in the argument that the sentence is unreasonable because
illegal reentry amounts to a nonviolent trespass offense. See United States v.
Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). The district court considered
Torres-Vargas’s motive for returning and his personal history and
characteristics, including his past substance abuse, and it sentenced him 10
months below the applicable guidelines range. He has not shown that the
sentence was unreasonable.
      The judgment of the district court is AFFIRMED.




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