     Case: 11-20267     Document: 00511781356         Page: 1     Date Filed: 03/08/2012




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

                                                                            FILED
                                                                           March 8, 2012
                                     No. 11-20267
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VICTOR HUGO ALEGRIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-421-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Victor Hugo Alegria appeals the 46-month within-guidelines sentence
imposed by the district court for his conviction for illegal reentry into the United
States after deportation following an aggravated felony conviction. He argues
that the sentence is substantively unreasonable because U.S.S.G. § 2L1.2 is not
empirically based, the sentence is disproportionate to the actual crime because
it is essentially a trespass, and his prior drug conviction is stale. Because
Alegria did not raise these arguments in the district court, review of them 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20267

limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Alegria further asserts that the district court failed to consider his cultural
assimilation into the Untied States as a basis for a downward departure or
variance. He preserved this argument for appeal by first raising it in the district
court. See Rita v. United States, 551 U.S. 338, 351 (2007).
      Alegria does not contend that the district court committed any procedural
error regarding his sentence. Thus, we confine our review to whether the
sentence is substantively unreasonable. See Gall v. United States, 552 U.S. 38,
51 (2007). We have consistently rejected Alegria’s argument that § 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 have also held that “the
staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable,” nor does it “destroy the presumption of reasonableness that
attaches to such sentences.” United States v. Rodriguez, 660 F.3d 231, 234 (5th
Cir. 2011). We have also rejected Alegria’s argument that his sentence is
disproportionate to his actual crime because it is essentially a trespass. See
United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006); see also United
States v. Cardenas-Alvarez, 987 F.2d 1129, 1133-34 (5th Cir. 1993).
      The district court considered the Presentence Report, Alegria’s objections
and request for a downward variance based on his cultural assimilation, and his
arguments and allocution at sentencing. The district court implicitly rejected his
arguments and determined that a within-guidelines sentence was appropriate.
Alegria has not shown that his sentence does not account for a factor that should
receive significant weight, gives significant weight to an irrelevant or improper
factor, or represents a clear error of judgment in balancing the sentencing
factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Accordingly, the district court’s judgment is AFFIRMED. The
Government’s motion for summary affirmance is DENIED. See United States

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                                 No. 11-20267

v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006).
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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