     Case: 10-50979     Document: 00511518636          Page: 1    Date Filed: 06/23/2011




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

                                                 FILED
                                                                            June 23, 2011
                                     No. 10-50979
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

BERNARDINO CALDERA-RAYOS, also known as Miguel Caldera-Rayos,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:10-CR-1770-1


Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Bernardino Caldera-Rayos (Caldera) pleaded guilty to one count of
attempted illegal reentry after deportation and one count of committing a false
impersonation in immigration matters. He received a sentence of 46 months in
prison, to be followed by a three-year term of supervised release. On appeal,
Caldera challenges the substantive reasonableness of his sentence, arguing that
his prior drug conviction was “double-counted,” as it was used in both his
criminal history and as a specific offense characteristic. He maintains that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50979   Document: 00511518636     Page: 2   Date Filed: 06/23/2011

                                 No. 10-50979

because the applicable Guideline, U.S.S.G. § 2L1.2, was not empirically based,
it does not warrant a presumption of reasonableness. Caldera maintains that
his sentence was too harsh given the minor nature of an illegal reentry offense,
his benign motives for returning to the United States, and his plans for his
family to join him in Mexico that should preclude future illegal entries.
      We have rejected Caldera’s challenges to the lack of empirical data
supporting § 2L1.2 and the double counting of his criminal history. 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.
2009). Additionally, the “international trespass” argument raised by Caldera
does not justify disturbing an otherwise presumptively reasonable sentence.
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (per curiam).
      Caldera’s disagreement with the guidelines sentence imposed does not
suffice to rebut the presumption of reasonableness. See Gall v. United States,
552 U.S. 38, 51-52 (2007); United States v. Newson, 515 F.3d 374, 379 (5th Cir.
2008). The district court considered the factors argued by Caldera and found
that they did not outweigh other sentencing considerations, which does not
constitute “a clear error of judgment” in the court’s weighing of the various
sentencing factors. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009),
cert. denied, 130 S. Ct. 1930 (2010). Consequently, the judgment of the district
court is AFFIRMED.




                                       2
