     Case: 15-20529      Document: 00513572015         Page: 1    Date Filed: 06/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20529
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 29, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ABDIEL PLANCARTE-FRUTIS, also known as Adbiel Plancarte, also known
as Adbiel Frutis Plancarte,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-32-1


Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Abdiel Plancarte-Frutis appeals the sentence imposed following his
guilty plea conviction for being unlawfully present in the United States
following removal subsequent to a conviction for an aggravated felony.
Plancarte-Frutis argues that his sentence is substantively unreasonable
because it is greater than necessary to meet the sentencing goals of 18 U.S.C.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20529     Document: 00513572015     Page: 2   Date Filed: 06/29/2016


                                  No. 15-20529

§ 3553(a). He maintains that his within-guidelines range sentence should not
be considered presumptively reasonable because the Guideline under which he
was sentenced, U.S.S.G. § 2L1.2, is not empirically based, but he acknowledges
that this argument is foreclosed. He asserts that his guidelines range was
greater than necessary because § 2L1.2 double counted his prior conviction as
that conviction was responsible for a 16-level increase and all five of his
criminal history points. He contends that the sentence failed to account for his
personal history and characteristics because it did not reflect his strong ties to
the United States and the motive for his offense.
      A discretionary sentence imposed within the advisory guidelines range
is presumptively reasonable. United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). As Plancarte-Frutis acknowledges, his assertion that
we should not apply a presumption of reasonableness because § 2L1.2 is not
empirically based is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-
31 (5th Cir. 2009).
      The district court weighed the sentencing factors, rejected Plancarte-
Frutis’s request for a downward variance, and imposed a within-guidelines
range sentence primarily based on Plancarte-Frutis’s criminal offenses. The
double counting argument that Plancarte-Frutis raises has been previously
rejected. See Duarte, 569 F.3d at 529-31. As Plancarte-Frutis was sentenced
within the guidelines range, the sentence is entitled to a presumption of
reasonableness, and Plancarte-Frutis has not shown sufficient reason for us to
disturb that presumption. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008).
      AFFIRMED.




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