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

                                                FILED
                                                                October 20, 2009
                                No. 08-51228
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

IGNACIO HERNANDEZ,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:08-CR-1879-ALL


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Ignacio Hernandez appeals the sentence imposed following his guilty plea
conviction to illegal reentry of a previously deported alien, arguing that his
sentence is greater than necessary to satisfy the sentencing goals of 18 U.S.C.
§ 3553(a). Hernandez argues, for the purpose of preserving the issue for possible
Supreme Court review, that his within-guidelines sentence should not be
presumed reasonable because U.S.S.G. § 2L1.2 is not empirically based and thus



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-51228

is flawed under Kimbrough v. United States, 128 S. Ct. 558 (2007). He argues
that his sentence is greater than necessary to meet the sentencing goals of
§ 3553(a) because the Sentencing Guidelines account for his prior conviction both
to increase his offense level and to calculate his criminal history score.
Hernandez further contends that the guidelines range overstated the
seriousness of his offense because his conduct was not violent and that the
guidelines range did not properly account for his personal history and
characteristics, including his work history and his motive for reentering.
      In reviewing a sentence, we “consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 597 (2007). Hernandez did not raise in the district court
his arguments that § 2L1.2 lacked empirical support, that his prior offense was
“double counted” in calculating his advisory guidelines range, or that the
guidelines range overstated the seriousness of his offense and did not properly
account for his personal history and characteristics. We therefore review these
arguments for plain error. See United States v. Campos-Maldonado, 531 F.3d
337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008).
      This court has rejected the argument that the presumption of
reasonableness should not apply to within-guidelines sentences, when the
guidelines range was calculated         pursuant to § 2L1.2, an       “allegedly
non-empirically-grounded provision[] of the Guidelines.”       United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), cert. denied, 2009 WL 3162196
(Oct. 5, 2009) (No. 09-6195); see also United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5, 2009)
(No. 08-11099).    Hernandez’s argument that his sentence is unreasonable
because the guidelines range was greater than necessary to meet § 3553(a)’s
goals as a result of “double counting” also is unavailing. See Duarte, 569 F.3d
at 529-31.



                                         2
                                 No. 08-51228

      Hernandez has not shown an abuse of discretion by the district court. See
Gall, 128 S. Ct. at 596-97. Because Hernandez has not shown that his sentence
is unreasonable, he has not shown error, plain or otherwise. The district court’s
judgment is AFFIRMED.




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