     Case: 11-51115     Document: 00511903885         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-51115
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE EDUARDO AGUILERA, also known as Jose Eduardo Torres Aguilera,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-1032-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Jose Eduardo Aguilera appeals the concurrent, 36-month prison sentences
imposed following his guilty plea convictions for attempted illegal reentry and
making a false claim to United States citizenship. As a threshold matter,
Aguilera argues that a presumption of reasonableness should not apply to his
within-guidelines sentences on appellate review because the applicable
guideline, U.S.S.G. § 2L1.2, is not the result of empirical evidence and national
experience. As Aguilera acknowledges, this argument is foreclosed. See United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51115

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
       Aguilera next contends that the district court made two legal errors during
the sentencing hearing and that the errors prevented the court from properly
considering § 2L1.2’s lack of empirical basis. As to the first error, Aguilera
observes that, during the sentencing hearing, the court incorrectly stated that
there was rarely an empirical basis for any of the guidelines offense levels. As
to the other error, he contends that the district court incorrectly stated that it
could not consider § 2L1.2’s lack of empirical foundation because this court had
foreclosed the issue.
       Aguilera’s objection during the sentencing hearing that his sentences were
“greater than necessary” did not call his instant claims of legal error to the
district court’s attention in a manner that allowed the court to correct itself;
therefore, review is for plain error. See Mondragon-Santiago, 564 F.3d at 361.
To prevail, he must show a forfeited error that is clear or obvious and affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, this court has the discretion to correct the error but only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
       Because the court’s statements at sentencing are vague, unclear, and
subject to interpretations other than those advanced by Aguilera, there is no
plain error. See id. Even if plain error review were inapplicable, Aguilera could
not prevail because district courts need not undertake “a piece-by-piece analysis
of the empirical grounding behind each part of the sentencing guidelines,”
Duarte, 569 F.3d at 530, and have the discretion “to consider the policy decisions
behind the Guidelines, including the presence or absence of empirical data, as
part of their [18 U.S.C.] § 3553(a) analyses.” Mondragon-Santiago, 564 F.3d at
366.



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                                  No. 11-51115

      The district court herein expressly considered the policy considerations
behind the promulgation of the illegal reentry guideline; never indicated that for
policy reasons or any other reason that it wished to impose a departure sentence,
but could not, based on this court’s precedent; determined that, in light of
Aguilera’s three prior deportations, he should have accepted that he was not a
United States citizen at some point earlier than his instant offense; determined
that the facts and circumstances of Aguilera’s case did not fall outside the
heartland of cases; and found that the advisory guidelines range was sufficient,
but not greater than necessary, to achieve the § 3553(a) sentencing goals of
deterring another illegal reentry conviction, promoting respect for the law, and
ensuring the safety and welfare of the community. Accordingly, as to these
claims, Aguilera has shown no error, plain or otherwise.
      Aguilera additionally argues that § 2L1.2’s lack of empirical basis
produced a flaw that resulted in the use of his prior burglary conviction to
increase both his offense level and criminal history score. Double counting is not
prohibited unless expressly forbidden by the particular Guideline at issue. See
United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Section 2L1.2, the
Guideline at issue, does not prohibit the double counting of which Aguilera
complains. See § 2L1.2, comment. (n.6). For these reasons, this claim fails.
      Aguilera next argues that his 36-month prison terms are substantively
unreasonable because § 2L1.2 is not based on empirical evidence and because
the court failed to give adequate weight to his cultural assimilation, his
ineligibility for certain prison programs, and the nature of his illegal reentry
offense, which he compares to a regulatory or trespass offense.         Aguilera
preserved his challenge to the substantive reasonableness of his sentences. See
Mondragon-Santiago, 564 F.3d at 361.
      Aguilera’s arguments do not show that the district court erred in balancing
the § 3553(a) factors and instead reflect his disagreement with the propriety of
his sentences and the weighing of those factors. See, e.g., Duarte, 569 F.3d at

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                                  No. 11-51115

529-31 (addressing empirical evidence argument); United States v. Rodriguez,
660 F.3d 231, 234-35 (5th Cir. 2011) (addressing cultural assimilation); United
States v. Garay, 235 F.3d 230, 232–34 & nn.13, 18, & 19 (5th Cir. 2000)
(addressing alien status); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006) (addressing nature of illegal reentry offense). He has failed to rebut
the presumption of reasonableness attaching to his within-guidelines sentences
on appellate review, see United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009), or show that the district court abused its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007).
      Accordingly, the judgment of the district court is AFFIRMED.




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