     Case: 12-50889       Document: 00512351149         Page: 1     Date Filed: 08/22/2013




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

                                                                            FILED
                                                                          August 22, 2013
                                     No. 12-50889
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEVEN JAVIER CASTRO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:12-CR-231-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Steven Javier Castro appeals his below-guidelines sentence imposed
following his guilty plea to illegal reentry. He argues that his sentence was
substantively unreasonable. Our review is for plain error only. United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       Castro’s argument that the illegal reentry guideline is not empirically
based and results in a “double counting” of his criminal history is foreclosed by
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). His argument

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50889     Document: 00512351149      Page: 2    Date Filed: 08/22/2013

                                  No. 12-50889

that the advisory guidelines range overstated the seriousness of his nonviolent
illegal reentry offense has also been rejected by this court and is foreclosed. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Insofar as Castro argues that the sentence imposed was greater than
necessary to meet the goals of 18 U.S.C. § 3553(a) based on the unique
circumstances underlying his offense, he has not shown that the district court’s
downward variance was plainly erroneous. See Peltier, 505 F.3d at 91-92. When
resort is had to the record as a whole, it cannot be said that the district court
erred or deviated from a legal rule by imposing a 10-month downward variance
from the advisory guidelines range. See United States v. Olano, 507 U.S. 725,
732–33 (1993). Castro’s argument is, at its essence, a disagreement with the
district court’s weighing of the § 3553(a) factors, and, as such, he has not shown
that the district court erred on that basis. See Gall v. United States, 552 U.S. 38,
51 (2007).
      AFFIRMED.




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