     Case: 14-50697      Document: 00512981947         Page: 1    Date Filed: 03/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50697
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 25, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ARLEX ADALID GUZMAN-BAUTISTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-1245-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Arlex Adalid Guzman-Bautista (Guzman) pleaded guilty to illegal
reentry after deportation in violation of 8 U.S.C. § 1326 and was sentenced to
46 months of imprisonment and three years of supervised release. Guzman
challenges the substantive reasonableness of his sentence, arguing that his
sentence is unreasonable because it is greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a). He maintains that the sentence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50697     Document: 00512981947     Page: 2   Date Filed: 03/25/2015


                                  No. 14-50697

overstated the seriousness of his illegal entry offense because the offense is, at
base, an international trespass. He asserts that the sentence was greater than
necessary in part because of the illegal reentry guideline’s lack of empirical
basis and the double-counting of his criminal convictions to determine his
offense level and his criminal history category. He also contends that the 46-
month sentence imposed is greater than necessary to meet § 3553(a)’s goal of
deterring future crime, as it is substantially higher than his only other prior
criminal sentence of one year of imprisonment. Finally, Guzman argues that
the guidelines range failed to account for his benign motive for returning to the
United States and thereby failed to take into account his personal
circumstances and characteristics.
      We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007).       A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      None of Guzman’s arguments are sufficient to rebut the presumption of
reasonableness.      First, this court has rejected the argument that the
Guidelines overstate the seriousness of illegal reentry because it is a
nonviolent offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006).   Second, as Guzman acknowledges in his brief, we have also
repeatedly rejected the argument that the appellate presumption of
reasonableness does not apply because the illegal reentry Guideline, § 2L1.2,



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                                  No. 14-50697

is not empirically supported as required by Kimbrough v. United States, 552
U.S. 85 (2007). See United States v. Mondragon-Santiago, 564 F.3d 357, 366-
67 (5th Cir. 2009).       Guzman’s double-counting argument is similarly
unavailing. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
Third, and finally, this court has recognized that a claim of benign motive for
reentry fails to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The district court heard
Guzman’s arguments concerning his reasons for reentering the United States
and the fact that Guzman had only one prior conviction before the court
imposed a sentence within the advisory guidelines range. The district court
rejected those arguments. See Rita, 551 U.S. at 356-57 (“[W]hen a judge
decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.”).
      Guzman’s arguments do not show a clear error of judgment on the
district court’s part in balancing the § 3553(a) factors; instead, they constitute
a mere disagreement with the weighing of those factors. See Cooks, 589 F.3d
at 186.   Guzman has not demonstrated that the district court abused its
discretion when it sentenced him to a within-guidelines sentence of 46 months.
See Gall, 552 U.S. at 51. The judgment of the district court is AFFIRMED.




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