     Case: 15-50015      Document: 00513199507         Page: 1    Date Filed: 09/18/2015




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

                                    No. 15-50015                                     FILED
                                  Summary Calendar                           September 18, 2015
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GADIEL HIDALGO-PERALTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-1810


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Gadiel Hidalgo-Peralta (Hidalgo) appeals the 57-month within-
guidelines sentence imposed following his guilty plea conviction for illegally
reentering the United States after deportation. Because Hidalgo did not object
to his sentence in the district court, we review his challenge to the substantive
reasonableness of the sentence for plain error. See United States v. Peltier, 505
F.3d 389, 391 (5th Cir. 2007). Hidalgo acknowledges that under our precedent


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50015

review is limited to plain error, but he argues that no reasonableness objection
is needed to preserve error. He asserts that the courts of appeals are currently
divided on this matter and he wishes to preserve the issue for further review.
      To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Hidalgo contends that his sentence is greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a) because his illegal reentry offense
was essentially an international trespass and the illegal entry Guideline,
U.S.S.G. § 2L1.2, is problematic because it is not empirically based and results
in a double counting of his criminal history. Additionally, he asserts that the
sentence is greater than necessary to promote respect for the law and that it
fails to adequately account for his personal history and characteristics.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Hidalgo contends the presumption should not be applied because
§ 2L1.2 lacks an empirical basis, but he concedes the issue is foreclosed, and
he raises it only to preserve it for further review. See United States v. Duarte,
569 F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir. 2009).
      We have rejected challenges to the substantive reasonableness of a
sentence based on the same international-trespass, lack-of-empirical-basis,
and double-counting arguments raised in this appeal. See Duarte, 569 F.3d at
530-31; United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Moreover, the record does not reflect that Hidalgo’s sentence fails to “account



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                                  No. 15-50015

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 sentencing factors.” United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). Hidalgo’s dissatisfaction with the district court’s weighing of
the § 3553(a) sentencing factors is insufficient to rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
He has failed to demonstrate plain error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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