     Case: 14-50076       Document: 00512809438         Page: 1     Date Filed: 10/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-50076
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           October 21, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

EDUARDO PEREZ-LOPEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-619-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Eduardo Perez-Lopez pleaded guilty to being found in the United States
following deportation, in violation of 8 U.S.C. § 1326(a), (b)(1)(2), and was
sentenced within the advisory Sentencing Guidelines range to 41 months’
imprisonment. Perez contends his sentence is substantively unreasonable
because it overstates his criminal history and fails to account for “his ability to
remain in Mexico”, claiming “he worked there from 2009 until 2013”. He


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50076

further contends the crime-of-violence enhancement, pursuant to Guideline
§ 2L1.2, resulted in his prior conviction’s being counted twice in the calculation
of his advisory Guidelines sentencing range. Citing Kimbrough v. United
States, 552 U.S. 85 (2007), Perez also asserts a presumption of reasonableness
should not be applied to his within-Guidelines sentence because § 2L1.2 is not
supported by empirical data or national experience.
      Although post-Booker, the 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 advisory 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). As noted, Perez does
not claim procedural error. He claims only that his sentence is substantively
unreasonable.
      Our court has consistently rejected Perez’ “double counting argument”
and his claim that § 2L1.2 results in an excessive sentence because it is not
empirically based. E.g., United States v. Duarte, 569 F.3d 528, 529–30 (5th
Cir. 2009). Further, Perez acknowledges his challenge to the presumption of
reasonableness is foreclosed; he raises it to preserve it for possible further
review. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 366–67 (5th
Cir. 2009).   The district court considered Perez’ arguments for a below-
Guidelines sentence, including the alleged circumstances surrounding his
prior conviction for burglary of a habitation. Perez has failed to rebut the
presumption of reasonableness accorded his within-Guidelines sentence. E.g.,




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                                No. 14-50076

United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008); United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
            AFFIRMED.




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