     Case: 11-50149     Document: 00511614553         Page: 1     Date Filed: 09/27/2011




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

                                                                            FILED
                                                                        September 27, 2011
                                     No. 11-50149
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

Cons.w/No. 11-50150

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO PEREZ-RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-57-1


Before KING, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
        Roberto Perez-Rodriguez pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326 and was sentenced to 15 months of imprisonment
and three years of supervised release. The district court also revoked Perez-
Rodriguez’s supervised release from a prior illegal reentry conviction and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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sentenced him to eight months of imprisonment to be served consecutively to the
15 months.
      In connection with the new illegal reentry offense, Perez-Rodriguez argues
that his sentence is not reasonable as measured by the factors in 18 U.S.C.
§ 3553(a). He contends that the Guidelines did not account for his motive for
returning, produced unwarranted sentencing disparities, and were not based on
empirical data. He argues that the sentence imposed by the district court was
unreasonable because it was greater than necessary to meet the goals of
§ 3553(a). He contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is
not empirically based and double counts the defendant’s criminal history. He
argues, in reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007),
that the presumption of reasonableness should not apply, but he concedes that
his argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009), and he raises the argument to preserve it for
possible review by the Supreme Court. He further contends that the guidelines
range did not properly account for his particular circumstances, most notably,
his benign motive for reentering, which was out of fear of being murdered after
witnessing the murder of his nephew in Juarez. He also asserts that the lack of
a “fast-track” disposition program in the El Paso division of the Western District
of Texas creates an unwarranted sentencing disparity, but he concedes that the
issue is foreclosed.
      Although Perez-Rodriguez did not expressly object at sentencing to the
substantive reasonableness of his sentence, he did assert specific arguments in
favor of a variance, and his arguments at sentencing are substantively identical
to his assertions on appeal. He also repeated the request for a variance after the
district court imposed sentence. Perez-Rodriguez arguably alerted the district
court to the basis of his substantive unreasonableness argument and his
appellate arguments may not be restricted to plain error review. However,

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Perez-Rodriguez has not shown that the district court’s imposition of a within-
guidelines sentence of 15 months was improper under either the deferential Gall
standard of review or the plain-error review of Peltier. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007). Perez-Rodriguez’s argument concerning his alleged benign motive for
reentry fails to rebut the presumption of reasonableness. See Rita v. United
States, 551 U.S. 338, 347 (2007).
      As he so concedes, Perez-Rodriguez’s argument that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 lacks empirical
support has been rejected by this court. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009) (rejecting the notion that this court should examine
the empirical basis behind each Guideline before applying the presumption of
reasonableness); see also Mondragon-Santiago, 564 F.3d at 366-67. Perez-
Rodriguez’s argument that his guidelines range was greater than necessary to
meet § 3553(a)’s goals as a result of “double counting” is unavailing. The
Guidelines provide for consideration of a prior conviction for both criminal
history and the § 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have
also rejected the argument that such double-counting necessarily renders a
sentence unreasonable. See Duarte, 569 F.3d at 529-31. As Perez-Rodriguez
further concedes, his argument that the lack of a “fast-track” disposition
program in the El Paso division of the Western District of Texas creates an
unwarranted sentencing disparity also is foreclosed. See United States v. Gomez-
Herrera, 523 F.3d 554, 562-64 (5th Cir. 2008).
      In relation to his revocation sentence, Perez-Rodriguez contends that even
if his 21-month sentence for the new illegal reentry offense was reasonable, the
consecutive eight-month revocation sentence made his punishment excessive.
He argues that we erred in United States v. Miller, 634 F.3d 841, 843 (5th Cir.),
petition for cert. filed, (May 27, 2011) (No. 10-10784), by deciding that the plainly

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unreasonable standard of review applies to revocation sentences, and he raises
this issue to preserve it for further review.
      A district court has the discretion to order a sentence imposed upon
revocation of supervised release to be served consecutively to any other sentence.
18 U.S.C. § 3584; United States v. Gonzalez, 250 F.3d 923, 929 n. 8 (5th Cir.
2001).   Moreover, consecutive sentences are preferred under the policy
statements of the Guidelines. U.S.S.G. § 7B1.3(f) & comment. (n.4). We have
repeatedly upheld revocation sentences imposed to run consecutively to the
sentences imposed for the underlying offenses leading to the revocation. See
United States v. Ramirez, 264 F. App’x 454, 458-59 (5th Cir. 2008). Perez-
Rodriguez’s eight-month consecutive sentence upon revocation of his supervised
release is not plainly unreasonable. See Miller, 634 F.3d at 844. Accordingly,
Perez-Rodriguez’s sentences are AFFIRMED.




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