     Case: 11-51124     Document: 00511977581         Page: 1     Date Filed: 09/06/2012




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

                                                                            FILED
                                                                        September 6, 2012
                                     No. 11-51124
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GUADALUPE ALCANTARA-GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-43-1


Before JOLLY, BENAVIDES, and DENNIS, and Circuit Judges.
PER CURIAM:*
        Guadalupe Alcantara-Garcia appeals the 46-month within-guidelines
sentence imposed in connection with his conviction for illegal reentry following
deportation. Alcantara-Garcia challenges only the substantive reasonableness
of his sentence, arguing that it is greater than necessary to accomplish the
sentencing objectives of 18 U.S.C. § 3553(a). He challenges the application of
U.S.S.G. § 2L1.2 in calculating his guidelines range because he asserts that the
guideline is not empirically based, double counts his prior conviction, and fails

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51124

to account for the nonviolent nature of his offense, which he asserts is, at most,
international trespass. Also, Alcantara-Garcia contends that the conviction used
to enhance his sentence was more than ten years old and he would not have
received as great an increase in offense level based on the 2011 amendments to
U.S.S.G. § 2L1.2(b). Further, he asserts that the district court failed to account
for his personal circumstances and the circumstances of this offense.
Specifically, he notes that he has suffered from poverty and lack of education
and that he returned to the United States only to find employment.
      Although Alcantara-Garcia argued for a downward variance, he failed to
object after the imposition of his sentence. Alcantara-Garcia concedes that he
failed to object to his sentence after it was imposed and that this court’s review
is limited to plain error. Nevertheless, he seeks to preserve for further review
his contention that an objection after the imposition of sentence is not required
for abuse-of-discretion review. Because Alcantara-Garcia did not object to the
reasonableness of his sentence after it was imposed, review is arguably for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); but see
United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996). This court need not
determine whether plain error review is appropriate because Alcantara-Garcia’s
arguments fail even under the abuse-of-discretion standard of review. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Alcantara-Garcia’s sentence was within his advisory guidelines range,
his sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Alcantara-Garcia challenges the presumption of
reasonableness applied to his sentence but acknowledges the issue is foreclosed
and raises it to preserve the issue for further review. See United States v.
Mondragon-Santiago, 564 F.3d 357, 366-367 (5th Cir. 2009).



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                                  No. 11-51124

      Hernandez-Martinez’s argument that the seriousness of his offense is
overstated because U.S.S.G. § 2L1.2 double counts his criminal history has been
consistently rejected. See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th
Cir. 2011); United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009).
Similarly, we have not been persuaded by the contention that the Guidelines fail
to account for the nonviolent nature of an illegal reentry offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      The district court did not err in imposing the guidelines in effect at the
time of Alcantara-Garcia’s sentencing. See United States v. Rodarte-Vasquez,
488 F.3d 316, 322 (5th Cir. 2007). With respect to the age of the prior conviction
that was used to enhance Alcantara-Garcia’s offense level, “the staleness of a
prior conviction used in the proper calculation of a guidelines-range sentence
does not render a sentence substantively unreasonable,” nor does it “destroy the
presumption of reasonableness that attaches to such sentences.” Rodriguez, 660
F.3d at 234.
      The district court listened to Alcantara-Garcia’s arguments for a lesser
sentence but found that a sentence within the guidelines range was appropriate.
His contentions regarding his mitigating factors and benign motive for reentry
do not rebut the presumption of reasonableness. See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Lopez-Velasquez,
526 F.3d 804, 807 (5th Cir. 2008). Thus, Alcantara-Garcia has not shown
sufficient reason for this court to disturb the presumption of reasonableness
applicable to his sentence. See Cooks, 589 F.3d at 186.
      Accordingly, the judgment of the district court is AFFIRMED.




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