     Case: 16-51045      Document: 00513997597         Page: 1    Date Filed: 05/18/2017




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

                                    No. 16-51045
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             May 18, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

ANDRES ORLANDO MAJANO-CHICA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:16-CR-146-1


Before BENAVIDES, DENNIS and PRADO, Circuit Judges.
PER CURIAM: *
       Andres Orlando Majano-Chica pleaded guilty to illegal reentry and was
sentenced within the advisory guidelines range to 41 months of imprisonment.
On appeal he claims his sentence is substantively unreasonable. According to
Majano-Chica, U.S.S.G. § 2L1.2 lacks an empirical basis and results in the
double-counting of a criminal record. As well, Majano-Chica maintains that
his sentence is greater than necessary to fulfill the statutory sentencing goals


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51045    Document: 00513997597     Page: 2   Date Filed: 05/18/2017


                                 No. 16-51045

for his reentry offense and does not account for the fact that he reentered the
country to escape danger and rejoin his wife.
      We have rejected Majano-Chica’s theories that § 2L1.2’s lack of empirical
foundation necessarily renders its application unreasonable, see Mondragon-
Santiago, 564 F.3d at 366-67, that the Sentencing Guidelines “double count”
prior convictions, see United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.
2009), and that the Guidelines overstate the seriousness of illegal reentry, see
United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      Majano-Chica’s argument that within-guidelines sentences calculated
under § 2L1.2 should not be presumed reasonable on appeal because § 2L1.2
lacks an empirical basis is foreclosed, as he concedes. See Duarte, 569 F.3d at
530-31; United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009). Majano-Chica can rebut the presumption of reasonableness only by
showing that the sentence fails to account for a factor that should receive
significant weight, gives significant weight to an improper or irrelevant factor,
or represents a clear error of judgment in balancing the factors. See United
States v. Tuma, 738 F.3d 681, 695 (5th Cir. 2013).
      The district court heard the parties’ positions, considered the 18 U.S.C.
§ 3553(a) factors, and concluded that the sentence was appropriate. Majano-
Chica has not shown that his sentence failed to account for his fear of returning
to El Salvavdor and sympathetic motive for reentry or that the court made a
clear error judgment in weighing the factors. Because Majano-Chica has not
rebutted the appellate presumption that his within-guidelines sentence was
reasonable or demonstrated that his sentence is the result of an abuse of
discretion, see Gall v. United States, 552 U.S. 38, 51 (2007), the judgment is
AFFIRMED.




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