     Case: 12-50337       Document: 00512096952         Page: 1     Date Filed: 12/28/2012




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

                                                                            FILED
                                                                        December 28, 2012
                                     No. 12-50337
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MANUEL SAUCEDO-VALDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2801-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Manuel Saucedo-Valdez (Saucedo) appeals the 46-month within-guidelines
sentence he received following his guilty plea to illegal reentry. Saucedo argues
that his sentence is greater than necessary to meet the sentencing goals of 18
U.S.C. § 3553(a). He specifically contends that the guidelines sentencing range
was too severe because the district court failed to consider that his reentry
offense was at bottom a mere trespass and did not consider his assimilation in
and family ties to the United States. He further contends that his sentence is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50337

not entitled to a presumption of correctness because the illegal reentry guideline,
U.S.S.G. § 2L1.2, is not empirically based, given that it double-counts a
defendant’s criminal history.
      Conceding that he failed to object in the district court, Saucedo asserts
that plain error review should not apply because no objection is required to
preserve the issue of the substantive reasonableness of a sentence.            He
acknowledges, however, that the issue is foreclosed, and he raises it to preserve
the issue for further review. We have held that a defendant’s failure to object
at sentencing to the reasonableness of his sentence triggers plain error review.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Even if we
reviewed for an abuse of discretion, however, his arguments are unavailing. See
Gall v. United States, 552 U.S. 38, 51 (2007) (reviewing the substantive
reasonableness of a sentence for abuse of discretion).
      As he concedes, Saucedo’s empirical data argument is foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
We have rejected the argument that a guidelines sentence under § 2L1.2 is
unreasonable because illegal reentry is a mere trespass offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).         Furthermore,
Saucedo’s sentence, which is at the low end of the applicable guidelines range,
is presumed reasonable. See United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Saucedo has not demonstrated that the district court erred, much less
plainly erred, by sentencing him to a within-guidelines sentence of 46 months



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                                No. 12-50337

in prison. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. Consequently,
the judgment of the district court is AFFIRMED.




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