     Case: 11-50456     Document: 00511767258         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-50456
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR ENRIQUE ESTRADA MURILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-337-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Hector Enrique Estrada Murillo (Estrada) was sentenced to concurrent
57-month terms of imprisonment following his guilty plea to attempted illegal
reentry and false personation in immigration matters. He argues that his
sentence, which is at the bottom of the applicable guidelines range, is
unreasonable.
        Estrada does not contend that the district court committed any procedural
error regarding his sentence. Thus, this court’s review is confined to whether

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50456   Document: 00511767258      Page: 2   Date Filed: 02/24/2012

                                  No. 11-50456

the sentence is substantively unreasonable. See Gall v. United States, 552 U.S.
38, 51 (2007). Citing United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007), Estrada acknowledges that this court’s review is for plain error when a
defendant fails to object to the reasonableness of a sentence after the imposition
of sentence. Nevertheless, he seeks to preserve for further review his contention
that an objection is not required. This court need not determine whether plain
error review is appropriate because Estrada’s arguments fail even under the
abuse-of-discretion standard of review. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
      This court has consistently rejected Estrada’s “double counting” argument
and his argument that U.S.S.G. § 2L1.2 results in an excessive sentence because
it is not empirically based. See United States v. Duarte, 569 F.3d 528, 529-30
(5th Cir. 2009). We also have rejected the “international trespass” argument
that Estrada asserts. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th
Cir. 2006).
      As to Estrada’s argument that the Guidelines fail to account for the
seriousness of his offense or for his personal history and characteristics, the
district court expressly considered Estrada’s arguments for a variance, including
his cultural assimilation, the age of Estrada’s prior drug-trafficking conviction,
the lack of an empirical basis for § 2L1.2, the relative harshness of prison
sentences on aliens, and Estrada’s substance dependency issues. The district
court also considered Estrada’s criminal history, which the district court
considered extensive and included violent acts upon others. The district court
concluded that a sentence within the Guidelines “was consistent with all of the
purposes of the sentencing statute.” Estrada has not shown that the district
court failed to give proper weight to his arguments or any particular 18 U.S.C.
§ 3553(a) factor. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
He has thus failed to rebut the presumption of reasonableness that is accorded



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                                    No. 11-50456

his within-guidelines sentence. See id.; United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
      Accordingly, the district court’s judgment is AFFIRMED.                The
Government’s motion for summary affirmance is DENIED. Because no further
briefing is required, the Government’s motion for an extension of time to file a
brief is DENIED.




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