     Case: 10-50582 Document: 00511394223 Page: 1 Date Filed: 02/25/2011




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

                                                 FILED
                                                                          February 25, 2011
                                     No. 10-50582
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALBERTO CLAVELL, also known as Alberto Clavencio,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1133-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Alberto Clavell appeals the sentence imposed following his guilty-plea
conviction for illegal reentry in violation of 8 U.S.C. § 1326. Clavell contends
that his sentence is substantively unreasonable because it was greater than
necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a). To
support his argument, he relies on the lack of an empirical basis to support the
illegal reentry Guideline, the double-counting of prior convictions by the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50582 Document: 00511394223 Page: 2 Date Filed: 02/25/2011

                                  No. 10-50582

Guidelines, and the alleged failure of the sentence to take account of his history
and characteristics.
      We review the substantive reasonableness of Clavell’s sentence for an
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As Clavell raises
his empirical basis argument for the first time on appeal, however, we review
that argument for plain error. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007).
      As Clavell concedes, his empirical basis and double counting arguments
are foreclosed by our precedent. See United States v. Duarte, 569 F.3d 528, 529-
31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009);
United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008); United States
v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Moreover, his disagreement with
the district court’s balancing of the § 3553(a) factors does not suffice to show
error in connection with his sentence. See Gomez-Herrera, 523 F.3d at 565-66.
He has not shown that his sentence is unreasonable, and he has not shown that
the presumption of reasonableness should not be applied to his within-guidelines
sentence. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008). The judgment of the district court is AFFIRMED.




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