     Case: 11-51116     Document: 00511947834         Page: 1     Date Filed: 08/07/2012




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

                                                                            FILED
                                                                           August 7, 2012
                                     No. 11-51116
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

ALEJANDRO RODRIGUEZ-ALVAREZ, also known as Alejandro Alvarez-
Rodriguez,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1517-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Alejandro Rodriguez-Alvarez (Rodriguez) appeals his 41-month within-
guidelines sentence for being unlawfully present in the United States following
removal. He argues that his sentence was substantively unreasonable because
it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a). Citing
United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Rodriguez
maintains that his sentence was unreasonable because his prior aggravated


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51116   Document: 00511947834     Page: 2   Date Filed: 08/07/2012

                                 No. 11-51116

assault of a child conviction was stale and he has no serious subsequent criminal
history.   He asserts that one month after his sentence was imposed an
amendment to U.S.S.G. § 2L1.2 that would have lowered his guidelines sentence
range became effective and that his culpability was mitigated by his positive
motive for returning.
      Rodriguez argues that his request for a downward departure or variance
was sufficient to preserve his reasonableness challenge for review. As Rodriguez
acknowledges, this argument is foreclosed, and we review the substantive
reasonableness of the sentence for plain error because Rodriguez did not object
in the district court to the sentence as unreasonable. United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007).
       As Rodriguez’s sentence was within the guidelines range, a presumption
of reasonableness applies. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Rodriguez argues that a presumption of reasonableness should not apply
because § 2L1.2 is not empirically based. As Rodriguez acknowledges, this
argument is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357,
366-67 (5th Cir. 2009).
      This court has explicitly rejected the Ninth Circuit’s reasoning in
Amezcua-Vasquez. United States v. Rodriguez, 660 F.3d 231, 233-34 (5th Cir.
2011). The amendment to § 2L1.2 that became effective after Rodriguez’s
sentencing does not make Rodriguez’s sentence unreasonable or plainly
erroneous. See United States v. Martin, 596 F.3d 284, 285-86 (5th Cir. 2010).
      The district court, explicitly considering the § 3553(a) sentencing factors
and the arguments raised by Rodriguez, found that a sentence within the
guidelines sentence range was appropriate.       In light of the totality of the
circumstances, Rodriguez has not shown that the sentence was plainly
erroneous. See Gall v. United States, 552 U.S. 38, 51 (2007); Rita v. United
States, 551 U.S. 338, 359-60 (2007); Peltier, 505 F.3d at 392-94.
      AFFIRMED.

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