     Case: 12-51217   Document: 00512411381   Page: 1   Date Filed: 10/17/2013




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

                                                                 FILED
                                                              October 17, 2013
                              No. 12-51217
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

FRANCISCO AVILES-LOPEZ,

                                         Defendant-Appellant

Cons. w/ No. 12-51231

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

FRANCISCO LOPEZ AVILES,

                                         Defendant-Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:12-CR-635-1
                          USDC No. 2:12-CR-772-1
     Case: 12-51217       Document: 00512411381         Page: 2     Date Filed: 10/17/2013

                                      No. 12-51217
                                    c/w No. 12-51231

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Francisco Aviles-Lopez (Aviles) pleaded guilty of re-entering the United
States illegally after removal, and he was sentenced at the top of the guidelines
imprisonment range to a 41-month term of imprisonment and to a three-year
period of supervised release. Aviles’s supervised release in a prior case was
revoked and he was sentenced to a 21-month term of imprisonment, 10 months
of which were ordered to be served concurrently and 11 months of which were
ordered to be served consecutively. Thus, Aviles was sentenced to a total term
of imprisonment of 52 months and to a three-year period of supervised release.
Aviles gave timely notice of his appeals from the judgment of conviction and the
order of revocation. The two appeals have been consolidated.
       Aviles contends that the sentence imposed was greater than necessary to
satisfy the statutory sentencing factors. After United States v. Booker, 543 U.S.
220 (2005), sentences are reviewed for procedural error and substantive
reasonableness under an abuse of discretion standard. United States v. Johnson,
619 F.3d 469, 471-72 (5th Cir. 2010) (citing Gall v. United States, 552 U.S. 38,
50-51 (2007)). This court applies a presumption of reasonableness to properly
calculated within-guidelines sentences. United States v. Rashad, 687 F.3d 637,
644 (5th Cir. 2012).
       Aviles asserts that the Guideline governing his illegal re-entry case double
counted his prior criminal convictions and that the presumption of
reasonableness should not apply because the Guideline is not empirically based;
he contends that application of the Guideline sometimes results in sentences
that are too high to fulfill the statutory sentencing goals. These contentions are


       *
         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.

                                              2
    Case: 12-51217     Document: 00512411381      Page: 3   Date Filed: 10/17/2013

                                  No. 12-51217
                                c/w No. 12-51231

foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Next, Aviles complains that the 52-month sentence overstated the
seriousness of his unlawful re-entry case. He contends that, at bottom, his
offense was merely an international trespass.         We have rejected similar
arguments previously. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006).
      Lastly, Aviles contends that the 52-month sentence failed to reflect his
personal history and characteristics. In imposing the sentence, the district court
noted that Aviles had an extensive criminal history. Although many of his
offenses were not scored, the court observed, Aviles had an unusually high
criminal history score. The district court’s comments reflect that it was aware
of and understood the circumstances that caused Aviles to return to the United
States. Aviles has not shown that, in imposing the sentence, the district court
failed to account for factors that should receive significant weight, that it gave
significant weight to irrelevant or improper factors, or that it made a clear error
of judgment in balancing the statutory sentencing factors. See Rashad, 687 F.3d
644. Nor has he shown that the sentence imposed upon revocation of his
supervised release was plainly unreasonable. See United States v. Miller, 634
F.3d 841, 843 (5th Cir. 2011). The judgment of conviction and the order revoking
Aviles’s supervised release are AFFIRMED.




                                        3
