     Case: 13-50628      Document: 00512663244         Page: 1    Date Filed: 06/13/2014




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

                                                                               FILED
                                    No. 13-50628                           June 13, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ARMANDO AVALOS-NUNEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-644-1


Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jesus Armando Avalos-Nunez (“Avalos”) appeals the 46-month, within-
guidelines sentence imposed following his illegal re-entry conviction.                            He
argues that the sentence is substantively unreasonable and greater than
necessary to meet the goals of 18 U.S.C. § 3553(a). Avalos asserts that the
Guidelines failed to account for his personal history and circumstances,
including that he had lived in the United States legally since he was 16 years


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50628

old, that most of his family lives here, and that his motive for returning was to
be with his pregnant wife. Further, Avalos contends that U.S.S.G. § 2L1.2 is
not empirically based and double counted his prior conviction and overstated
the seriousness of his criminal history which he characterizes as an
international trespass. He maintains that the presumption of reasonableness
should not apply to his sentence because § 2L1.2 is not supported by empirical
data, but he acknowledges that the argument is foreclosed by United States v.
Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009).
      Generally, we review sentences for reasonableness in light of the
§ 3553(a) factors, applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 49-51 (2007). Under the bifurcated review process adopted
in Gall, we first consider whether the district court committed procedural error
and next examine the sentence for substantive reasonableness. Id. at 51;
United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010).
      It is not immediately clear whether Avalos properly preserved his
“empirical data” and “double-counting,” arguments. Because Avalos cannot
show an abuse of discretion in connection with these arguments, see
Mondragon-Santiago, 564 F.3d at 366-67; see also United States v. Duarte, 569
F.3d 528, 530-31 (5th Cir. 2009), we need not determine which standard of
review is applicable here.
      In addition, the district court considered Avalos’s request for a downward
variance and ultimately determined that a sentence within the advisory
guidelines range was appropriate under the circumstances and the § 3553(a)
factors. Avalos’s arguments that that § 2L1.2 overstates the seriousness of his
criminal history and does not take into account his personal history and
characteristics are insufficient to rebut the presumption of reasonableness.
See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008);



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                                 No. 13-50628

United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008); see also Gall, 552
U.S. at 51 (“The fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to justify reversal of
the district court.”). We are also unpersuaded by Avalos’s argument that his
offense was a non-serious trespass. United States v. Juarez-Duarte, 513 F.3d
204, 212 (5th Cir. 2008). Therefore, Avalos has failed to show that his 46-
month, within-guidelines sentence is substantively unreasonable.
      AFFIRMED.




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