     Case: 13-50655       Document: 00512609356         Page: 1     Date Filed: 04/28/2014




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

                                                                                       FILED
                                     No. 13-50655                                  April 28, 2014
                                   Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ABRAHAM HAMILTON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:13-CR-168


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Abraham Hamilton challenges the sentence imposed following his guilty
plea conviction for illegal reentry following deportation, in violation of 8 U.S.C.
§ 1326.       He contends the 57-month, within-Guidelines sentence is
substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals provided in 18 U.S.C. § 3553(a). According to Hamilton,
Sentencing Guideline § 2L1.2 is not empirically based and effectively double


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-50655

counts a defendant’s criminal record.          He also contends the advisory
Guidelines-sentencing range overstated the seriousness of his non-violent
reentry offense and failed to account for his personal history and
characteristics, specifically, his lack of education, his having suffered physical
and psychological abuse as a child, and his current memory loss, anxiety, and
depression.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Hamilton does not
claim procedural error. And, because he did not object in district court to the
substantive reasonableness of his sentence, review is only for plain error. See
United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
      Under that standard, Hamilton must show a plain (clear or obvious)
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. See id. (Hamilton concedes plain-error
review applies but seeks to preserve, for possible further review, his contention
that no objection to the reasonableness of a sentence is required.)
      “A discretionary sentence imposed within a properly calculated
[G]uidelines range is presumptively reasonable.” United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). Hamilton



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                                 No. 13-50655

contends this presumption should not apply to sentences calculated under
§ 2L1.2 because the Guideline is not empirically based. He concedes, however,
this contention is foreclosed by circuit precedent. See United States v. Duarte,
569 F.3d 528, 529–31 (5th Cir. 2009) (also rejecting assertion that double-
counting    necessarily   renders    a       sentence   unreasonable);     United
States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). Further,
this court has held the Guidelines do not overstate the seriousness of illegal
reentry, when it is claimed to be only a non-violent, international-trespass
offense. United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      The district court considered Hamilton’s request for a downward
variance, but concluded a sentence at the bottom of the applicable, advisory
Guidelines-sentencing range was appropriate, based on the circumstances of
the case and the § 3553(a) factors.      Hamilton’s various challenges to the
advisory sentencing range are insufficient to rebut the presumption of
reasonableness.   He has, therefore, failed to show clear or obvious error
regarding his sentence.
      AFFIRMED.




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