     Case: 13-51059       Document: 00512734891         Page: 1     Date Filed: 08/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                     No. 13-51059                               FILED
                                   Summary Calendar                       August 15, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CIPRIANO RODRIGUEZ-GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-1717


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Cipriano Rodriguez-Garcia challenges the 46-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. Rodriguez contends his sentence is substantively
unreasonable because it is greater than necessary to meet the sentencing goals
outlined in 18 U.S.C. § 3553(a). Along that line, he maintains: Sentencing
Guideline § 2L1.2 lacks an empirical basis and effectively double-counted his


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 13-51059     Document: 00512734891      Page: 2   Date Filed: 08/15/2014


                                  No. 13-51059

prior drug conviction; the advisory-Guidelines-sentencing range overstated the
seriousness of his non-violent offense, which he claims is merely an
international trespass; and the district court failed to account for his personal
history and characteristics, including his motive for returning to the United
States (to be with his family).
      Although post-Booker, the Sentencing 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).
      Rodriguez does not claim procedural error; instead, he contends only that
his sentence is substantively unreasonable.           On the other hand, “[a]
discretionary sentence imposed within a properly calculated [G]uidelines
[sentencing] range is presumptively reasonable”. United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
      Rodriguez contends the within-Guidelines sentence should not be
afforded that presumption because Guideline § 2L1.2 lacks an empirical basis.
He concedes our precedent, see, e.g., United States v. Mondragon-Santiago, 564
F.3d 357, 366–67 (5th Cir. 2009), forecloses this contention and raises it only
to preserve it for possible further review. Furthermore, our court has rejected
the oft-repeated claims that a sentence based on § 2L1.2 is substantively
unreasonable because it effectively double-counts a defendant’s criminal
history or overstates the seriousness of illegal reentry. United States v. Duarte,
569 F.3d 528, 529–31 (5th Cir. 2009).



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                               No. 13-51059

      The district court considered Rodriguez’ claims but determined the 46-
month sentence was appropriate. Rodriguez’ claims regarding his personal
history and circumstances are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565–66
(5th Cir. 2008).
      AFFIRMED.




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