     Case: 12-50908       Document: 00512271056         Page: 1     Date Filed: 06/12/2013




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

                                                                            FILED
                                                                           June 12, 2013
                                     No. 12-50908
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS PINEDA RAMOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-763-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jesus Pineda Ramos (Pineda Ramos) pleaded guilty to attempting to
reenter the United States illegally following removal and to personating another
when applying for admission to the United States. The district court sentenced
Pineda Ramos at the bottom of the advisory guidelines range to 70 months in
prison and three years of nonreporting supervised release on each count, to run
concurrently.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-50908

      On appeal, Pineda Ramos argues that his sentence is substantively
unreasonable because it is greater than necessary to satisfy the sentencing goals
set forth in 18 U.S.C. § 3553(a). Because Pineda Ramos objected to the denial
of his motion for a downward variance, which was based on an assertion that a
guidelines sentence was greater than necessary to satisfy the § 3553(a) factors,
he has preserved his challenge to the substantive reasonableness of his sentence.
Cf. United States v. Peltier 505 F.3d 389, 391-92 (5th Cir. 2007) (holding that a
defendant’s failure to object at sentencing to the reasonableness of his sentence
triggers plain error review). The substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007).
      A sentence within the advisory guidelines range is presumptively
reasonable.      United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
Although Pineda Ramos contends that the presumption of reasonableness should
not apply, he concedes that circuit authority forecloses his assertion and he
raises it for potential future review. See United States v. Mondragon-Santiago,
564 F.3d 357, 367 (5th Cir. 2009).
      Pineda Ramos asserts that the illegal reentry Guideline, § 2L1.2, is not
empirically based and double counts the same prior conviction to increase the
offense level and to determine the criminal history category, a procedure he
asserts tends to result in a guidelines range greater than necessary to meet the
sentencing goals of § 3553(a). We have consistently rejected these arguments.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009); Mondragon-
Santiago, 564 F.3d at 366-67.
      Asserting that he made “a try at a trespassory offense” and that 70 months
in prison “for an act that could have been stopped simply by saying ‘go home’ is
unreasonable,” Pineda Ramos contends that the Guidelines overstated the
seriousness of his attempted illegal reentry offense. Congress has decided that
merely attempting to illegally reenter the United States after removal may be

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                                   No. 12-50908

punishable by a term of imprisonment. 8 U.S.C. § 1326(a). We have consistently
rejected this “simple trespass” argument. See United States v. Juarez-Duarte,
513 F.3d 204, 212 (5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006).
      Pineda Ramos also argues that the guidelines range did not take into
account his personal history and characteristics. The sentencing transcript
reveals that the district court carefully made an individualized sentencing
decision based on the facts of the case in light of the factors set out in § 3553(a).
See Gall, 552 U.S. at 49-50.           The district court’s conclusion that a
within-guidelines sentence is appropriate is entitled to deference, and we
presume that it is reasonable. See id. at 51-52; Newson, 515 F.3d at 379. Pineda
Ramos has not shown that the district court committed a “clear error of
judgment” in its weighing of the various sentencing factors, and he has not
established that the district court’s sentence failed to account for a significant
factor or gave weight to an irrelevant factor. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). We see no reason to disturb the district court’s
discretionary decision to impose a sentence within the guidelines range. The
district court listened to Pineda Ramos’s arguments for a lesser sentence but
found that a sentence at the bottom of his guidelines range was appropriate.
Pineda Ramos has not shown sufficient reason for this court to disturb the
presumption of reasonableness applicable to his sentence. See id. at 186.
      Accordingly, the judgment of the district court is AFFIRMED.




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