     Case: 15-50095      Document: 00513262026         Page: 1    Date Filed: 11/06/2015




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

                                                                                  FILED
                                    No. 15-50095                           November 6, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAVIER RENE RUBIO-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-317-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       For the first time on appeal, Javier Rene Rubio-Hernandez challenges
the substantive reasonableness of the sentence imposed following his guilty
plea conviction for illegally reentering the United States. In particular, he
contends that an objection was not required to preserve his challenge to the
reasonableness of his sentence; his within-guidelines, 24-month prison
sentence should not be afforded an appellate presumption of reasonableness


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50095

because the illegal reentry guideline, U.S.S.G. § 2L1.2, lacks an empirical
basis; § 2L1.2 double counted his prior burglary conviction by using it to
calculate both his offense level and his criminal history; his sentence fails to
reflect that his illegal reentry offense is merely an international trespass
offense; and his sentence fails to account for his personal circumstances,
including his strong ties to the United States, his lack of family in Mexico, and
his benign motive for illegally reentering (to be with his family). Additionally,
Rubio-Hernandez contends that the district court should not have ordered a
three-year term of supervised release because the Sentencing Guidelines do
not recommend such a term where the defendant is a deportable alien who
likely will be deported after imprisonment.
      As Rubio-Hernandez concedes, we require an objection to preserve an
appellate challenge to the substantive reasonableness of a sentence.          See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Accordingly,
plain error review applies because Rubio-Hernandez did not raise his instant
arguments in the district court. Id.
      Rubio-Hernandez’s argument that the appellate presumption of
reasonableness should not apply because § 2L1.2 lacks an empirical basis is
foreclosed by our precedent. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). Likewise, we have rejected arguments that
the double-counting of a defendant’s prior convictions necessarily renders a
sentence unreasonable, see United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009), and arguments that the Guidelines overstate the seriousness of
illegal reentry because it is simply a non-violent international trespass offense,
see United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). Rubio-
Hernandez’s claim that his sentence failed to account for his personal
circumstances is also unavailing. In essence, this argument amounts to a mere



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                                  No. 15-50095

dissatisfaction with the district court’s weighing of the § 3553(a) factors, which
is insufficient to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, Rubio-
Hernandez has shown no plain error in the district court’s imposition of a 24-
month prison term. See Peltier, 505 F.3d at 391-92.
      With regard to the district court’s imposition of a supervised release
term, Rubio-Hernandez’s argument is likewise unavailing. The court imposed
a term of supervised release that was within the range recommended by the
Sentencing Guidelines. Rubio-Hernandez has offered no compelling argument
to rebut the appellate presumption of reasonableness. See United States v.
Cancino-Trinidad, 710 F.3d 601, 607-08 (5th Cir. 2013). We perceive no error,
plain or otherwise, in the district court’s imposition of a supervised release
term. See id.
      Accordingly, the judgment of the district court is AFFIRMED.




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