     Case: 12-50687       Document: 00512279990         Page: 1     Date Filed: 06/19/2013




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

                                                                            FILED
                                                                           June 19, 2013
                                     No. 12-50687
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SALOME CHIHUAHUA-JUAREZ, also known as Chihuahua-Juarez Salome,

                                                  Defendant-Appellant

Cons. w/ No. 12-50774

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

SALOME CHIHUAHUA-JUAREZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:11-CR-2269-1
                             USDC No. 2:12-CR-1099-1


Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*

       *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
     Case: 12-50687     Document: 00512279990    Page: 2   Date Filed: 06/19/2013

                                  No. 12-50687
                                c/w No. 12-50774

       Salome Chihuahua-Juarez appeals the 71-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation, in
violation of 8 U.S.C. § 1326. He also appeals the consecutive six-month sentence
imposed following the revocation of a prior term of supervised release.
       Chihuahua-Juarez contends that the within-guidelines sentence imposed
following his illegal reentry conviction is substantively unreasonable because it
was greater than necessary to accomplish the sentencing goals set forth in 18
U.S.C. § 3553(a). Relying on Kimbrough v. United States, 552 U.S. 85, 108-10
(2007), he argues that the guidelines range was too severe because U.S.S.G.
§ 2L1.2 is not empirically based and 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 benign motive for
returning to the United States, specifically, to support his 15 children.
Chihuahua-Juarez acknowledges that his argument that the lack of an empirical
basis for § 2L1.2 precludes an appellate presumption of reasonableness is
foreclosed by circuit precedent. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). Nevertheless, he seeks to preserve this issue
for further review.
       We have consistently rejected Chihuahua-Juarez’s “empirical data”
argument. See id. at 366-67 & n.7; United States v. Duarte, 569 F.3d 528, 530
(5th Cir. 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 Sentencing 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).




R. 47.5.4.

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    Case: 12-50687     Document: 00512279990      Page: 3   Date Filed: 06/19/2013

                                  No. 12-50687
                                c/w No. 12-50774

      The district court considered Chihuahua-Juarez’s mitigation arguments
and request for a downward variance, as well as the Government’s argument
that an upward variance was warranted due to his extensive and understated
criminal history. The district court ultimately concluded that a sentence at the
top of the applicable guidelines range was appropriate based on the
circumstances of the case and the § 3553(a) factors.         Chihuahua-Juarez’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, and his motive for
reentering justified a lower sentence are insufficient to rebut the presumption
of reasonableness afforded to within-guidelines sentences. 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). The fact that we might reasonably conclude
that a different sentence was appropriate is insufficient to justify reversal. Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Williams, 517 F.3d 801,
809 (5th Cir. 2008). Therefore, Chihuahua-Juarez has failed to show that his
71-month within-guidelines sentence is substantively unreasonable. See United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
      Next, Chihuahua-Juarez contends that the consecutive six-month sentence
imposed following the revocation of his supervised release is plainly
unreasonable. He argues that the consecutive sentence was greater than
necessary to accomplish the sentencing goals set forth in § 3553(a) because he
returned to the United States to find work to support his large family.
      We review preserved challenges to revocation sentences under a
deferential plainly unreasonable standard. United States v. Miller, 634 F.3d
841, 843 (5th Cir. 2011).     The presumption of reasonableness afforded to
within-guidelines sentences also applies to within-guidelines revocation
sentences. See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir.
2008).

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    Case: 12-50687    Document: 00512279990     Page: 4     Date Filed: 06/19/2013

                                 No. 12-50687
                               c/w No. 12-50774

      Chihuahua-Juarez’s     six-month     sentence   was    within   the   range
recommended by the policy statements and within the statutory maximum term
of imprisonment that the district court could have imposed. See 18 U.S.C.
§ 3583(e)(3); § 7B1.4(a). As previously discussed, Chihuahua-Juarez’s assertion
that his motive for reentering the United States justified a lower sentence is
insufficient to rebut the presumption of reasonableness. See Gomez-Herrera, 523
F.3d at 565-66; Rodriguez, 523 F.3d at 526. Further, we have repeatedly upheld
as reasonable within-guidelines revocation sentences ordered to run
consecutively to the sentence for the criminal offense leading to the revocation.
United States v. Ramirez, 264 F. App’x 454, 458-59 (5th Cir. 2008). Therefore,
Chihuahua-Juarez has failed to show that his revocation sentence is plainly
unreasonable. See Miller, 634 F.3d at 843.
      Accordingly, the district court’s judgments are AFFIRMED.




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