     Case: 13-51202      Document: 00512727987         Page: 1    Date Filed: 08/08/2014




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

                                                                                   FILED
                                                                                August 8, 2014
                                    No. 13-51202                                Lyle W. Cayce
                                  Summary Calendar                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODOLFO SEGUNDO-LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-788-1


Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Rodolfo Segundo-Lopez (Segundo) appeals the
sentence imposed following his guilty plea conviction on a charge of illegal
reentry, in violation of 8 U.S.C. § 1326. He contends that the 24-month, within-
guideline sentence is substantively unreasonable because it was greater than
necessary to satisfy the sentencing goals in 18 U.S.C. § 3553(a). Segundo
asserts that the guideline range was too high to fulfill § 3553(a)’s goals because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51202     Document: 00512727987      Page: 2   Date Filed: 08/08/2014


                                  No. 13-51202

U.S.S.G. § 2L1.2 is not empirically based and effectively double-counts a
defendant’s criminal record. He also contends that the range overstates the
seriousness of his nonviolent reentry offense and fails to account for his
personal history and characteristics; specifically, his cultural assimilation and
motives for returning to the United States.
      As Segundo did not object on the basis of substantive reasonableness in
the district court, plain error review applies. See United States v. Peltier, 505
F.3d 389, 391−92 (5th Cir. 2007). He acknowledges that we apply plain error
review when a defendant fails to object to the reasonableness of his sentence,
but seeks to preserve the issue for further review.
      “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”        United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). As noted, Segundo contends
that the presumption of reasonableness should not apply to sentences
calculated under § 2L1.2 because the Guideline is not empirically based.
      Segundo concedes that we have consistently rejected the “empirical data”
argument. See United States v. Mondragon-Santiago, 564 F.3d 357, 366−67
& n.7 (5th Cir. 2009). We have also rejected contentions that double-counting
necessarily renders a sentence unreasonable, United States v. Duarte, 569 F.3d
528, 529−31 (5th Cir. 2009), and that the Guidelines overstate the seriousness
of illegal reentry because it is only a nonviolent, international-trespass offense,
see United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      The district court considered Segundo’s request for a sentence at the
bottom of the advisory guidelines range and also considered the § 3553(a)
factors, but it concluded that a sentence in the middle of the guidelines range
was sufficient—yet not greater than necessary—to satisfy the sentencing goals
in § 3553(a). Segundo’s arguments are insufficient to rebut the presumption



                                        2
       Case: 13-51202   Document: 00512727987   Page: 3   Date Filed: 08/08/2014


                                 No. 13-51202

of reasonableness. See 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).
Segundo has failed to show that the sentence is substantively unreasonable,
and there is no reversible plain error. See Campos-Maldonado, 531 F.3d at
339.
        AFFIRMED.




                                       3
