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

                                                 FILED
                                                                             May 6, 2009
                                     No. 08-50995
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

RAFAEL ORLANDO MARINERO-REVELO

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:08-CR-6-ALL


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Rafael Orlando Marinero-Revelo (Marinero) pleaded guilty to the charge
of being an alien found unlawfully in the United States following a prior removal
and received a sentence of 72 months in prison. He asserts that the sentence he
received is substantively unreasonable.
       Marinero contends that his sentence is unreasonable because the
applicable guideline, U.S.S.G. § 2L1.2, was not created based on empirical
evidence and double-counted his prior crime of violence. Because Marinero did

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-50995

not challenge the reasonableness of his sentence on this ground in the district
court, we review this appellate argument for plain error. See United States v.
Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128
S. Ct. 2959 (2008). He has not established that the district court plainly erred
by relying on § 2L1.2 to impose his sentence. See United States v. Campos-
Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      Marinero also maintains that the sentence was greater than needed to
accomplish the goals of sentencing listed in 18 U.S.C. §3553(a). He notes that
he returned to the United States to find work and reconnect with his family and
that his prior criminal history was caused by a history of alcoholism. Marinero
further contends that his offense was not inherently evil and “was, at bottom, an
international trespass.” The district court heard Marinero’s allocution about his
reasons for returning and his problems with alcohol but elected to impose a
sentence within the applicable range. The court’s statements at sentencing
reflect the court’s concerns about the severity of Marinero’s prior offenses.
Marinero has not shown that the district court abused its discretion in selecting
a sentence or, consequently, that the within-guidelines sentence imposed is
unreasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007); United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Consequently, the judgment
of the district court is AFFIRMED.




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