     Case: 15-50892      Document: 00513763823         Page: 1    Date Filed: 11/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-50892                                 FILED
                                  Summary Calendar                       November 17, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICARDO RODRIGUEZ-BERBAL,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-911-1


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Ricardo Rodriguez-Berbal challenges the substantive reasonableness of
his within-guidelines sentence of 41 months of imprisonment for illegal
reentry. See 8 U.S.C. § 1326. Where, as here, the district court imposes a
sentence within a properly calculated guidelines range, we apply a rebuttable
presumption of reasonableness. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).      Although he wishes to preserve the issue of the proper


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50892     Document: 00513763823     Page: 2   Date Filed: 11/17/2016


                                  No. 15-50892

standard of review, Rodriguez-Berbal correctly concedes that we will review
his sentence only for plain error. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007).
      As an initial matter, Rodriguez-Berbal argues that U.S.S.G. § 2L1.2
lacks an empirical basis, relies on criminal history to set offense levels, and
fails to account for the fact that he has no prior illegal reentry convictions. We
have repeatedly rejected similar challenges. See United States v. Duarte, 569
F.3d 528, 529 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 (5th Cir. 2009). Rodriguez-Berbal also notes that a revision of
§ 2L1.2 is expected to take effect November 1, 2016, and that, under the
amended guideline, his recommended sentencing range would be much lower.
However, he has not shown that the district court relied on an incorrect version
of the Guidelines. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999); U.S.S.G. § 1B1.11(a).
      Rodriguez-Berbal argues that his sentence is greater than necessary to
provide deterrence and to reflect his personal history and characteristics. At
sentencing, the district court stated that it had considered the Guidelines, the
§ 3553(a) factors, the allocution of the parties, and the pre-sentence report. His
repetition of arguments that the district court already considered amounts to
a disagreement with his sentence, which fails to rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      In sum, Rodriguez-Berbal has not rebutted the presumption of
reasonableness attached to his within-guidelines range sentence. See Cooks,
589 F.3d at 186. Therefore, he has not shown that the district court plainly
erred. See Peltier, 505 F.3d at 391-92.
      AFFIRMED.



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