     Case: 14-50442      Document: 00512910959         Page: 1    Date Filed: 01/22/2015




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

                                    No. 14-50442
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           January 22, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

ERIK DANIEL BEJARANO-ORDONEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:13-CR-634


Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Erik Daniel Bejarano-Ordonez appeals the sentence imposed following
his guilty plea conviction for illegal reentry following deportation in violation
of 8 U.S.C. § 1326. He contends that the 46-month within-guidelines sentence
is substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals set forth in 18 U.S.C. § 3553(a). According to Bejarano-
Ordonez, the guidelines range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50442     Document: 00512910959        Page: 2   Date Filed: 01/22/2015


                                  No. 14-50442

U.S.S.G. § 2L1.2 is not empirically based and effectively double counts a
defendant’s criminal record.      He also argues that the guidelines range
overstated the seriousness of his non-violent reentry offense and failed to
account for his personal history and characteristics, specifically, his cultural
assimilation and motive for returning to the United States.
      Although Bejarano-Ordonez acknowledges that we apply plain error
review when a defendant fails to object to the reasonableness of the sentence
imposed in the district court, he seeks to preserve the issue for further review.
Because Bejarano-Ordonez did not object to the substantive reasonableness of
his sentence in the district court, plain error review applies. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      “When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the . . .
§ 3553(a) factors, we will give great deference to that sentence and will infer
that the judge has considered all the factors for a fair sentence set forth in the
Guidelines in light of the sentencing considerations set out in § 3553(a).”
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)
(internal quotation marks and citation omitted). “A discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.
      Bejarano-Ordonez contends that the presumption of reasonableness
should not apply to sentences calculated under § 2L1.2 because the Guideline
is not empirically based. He acknowledges that his argument is foreclosed by
circuit precedent but seeks to preserve the issue for further review.             As
Bejarano-Ordonez concedes, we have consistently rejected his “empirical data”
argument. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 & n.7 (5th Cir.



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                                 No. 14-50442

2009).   We have also rejected arguments that double-counting necessarily
renders a sentence unreasonable, see Duarte, 569 F.3d at 529-31, and that the
Guidelines overstate the seriousness of illegal reentry because it is simply a
non-violent international trespass offense, see United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006).
      The district court considered Bejarano-Ordonez’s mitigation arguments
and the § 3553(a) factors.    The district court ultimately concluded that a
sentence at the bottom of the guidelines range was sufficient, but not greater
than necessary, to satisfy the sentencing goals set forth in § 3553(a). Bejarano-
Ordonez’s assertions that § 2L1.2’s lack of an empirical basis, the double-
counting of his prior conviction, the non-violent nature of his offense, his
cultural assimilation, and his motive for reentering justified a lower sentence
are insufficient to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Bejarano-Ordonez has
failed to show that his 46-month within-guidelines sentence is substantively
unreasonable, and there is no reversible plain error. See Campos-Maldonado,
531 F.3d at 339. The district court’s judgment is AFFIRMED.




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