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

                                                FILED
                                                                February 20, 2009
                                No. 08-40049
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ROBERTO AGUILAR, JR, also known as Robert Aguilar

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No.7:07-CR-618-1


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Roberto Aguilar, Jr., pleaded guilty to the charge of being found illegally
in the United States after having been deported. See 8 U.S.C. § 1326. Because
Aguilar had a prior conviction for robbery, his offense level was adjusted upward
by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).      After granting the
Government’s request for a two-level downward departure for early disposition
under § 5K3.1, p.s., the district court sentenced Aguilar to a 37-month term of



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40049

imprisonment, at the bottom of the guidelines range.            Aguilar appeals his
sentence, arguing that it is unreasonable. In reviewing a sentence, we “consider
the   substantive   reasonableness    of       the   sentence   imposed   under   an
abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
      Aguilar argues that § 2L1.2 is not empirically based and should be
accorded little weight in the 18 U.S.C. § 3553(a) analysis. Because Aguilar did
not raise this argument in the district court, plain error review applies. See
United States v. Baker, 538 F.3d 324, 332 (5th Cir.), cert. denied, 2009 WL 56591
(Jan. 12, 2009) (No. 08-7559). Aguilar has not shown error, plain or otherwise.
See United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      Aguilar is essentially asking this court to reweigh the § 3553(a) factors,
which we may not do.       See Gall, 128 S. Ct. at 597.          The totality of the
circumstances, considered in light of the § 3553(a) factors, supports the sentence
the district court imposed. See id.
      AFFIRMED.




                                           2
