     Case: 14-51161      Document: 00513192778         Page: 1    Date Filed: 09/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51161
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 14, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BAYRON BORJAS-PEREIRA, also known as Borjas Aucdel-Borjas, also
known as Vairo Audel-Borjas, also known as Byron Borjas-Pereira, also known
as Bairo Borjas-Pereira, also known as Jose Enrique Perez-Duon,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:14-CR-445-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Bayron Borjas-Pereira (Borjas) appeals the 41-month, within-guidelines
sentence imposed following his guilty plea conviction for illegally reentering
the United States after removal, in violation of 8 U.S.C. § 1326. He challenges
the substantive reasonableness of his sentence, contending that the sentence
is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-51161     Document: 00513192778     Page: 2   Date Filed: 09/14/2015


                                  No. 14-51161

In support of his argument, Borjas asserts that his illegal reentry offense is
essentially an international trespass and that the illegal reentry Guideline,
U.S.S.G. § 2L1.2, is problematic because it is not empirically based and results
in the double counting of his criminal history. He also asserts that the sentence
is greater than necessary to promote respect for the law, to provide adequate
deterrence, and to protect the public, and that it fails to adequately account for
his personal history and characteristics.
      Because Borjas did not object to his sentence in the district court, we
review his challenge to the substantive reasonableness of the sentence for plain
error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). Borjas
asserts that a majority of courts of appeals have held that a defendant need
not object after imposition of sentence to preserve error where he has already
presented his arguments for a lower sentence to the district court. He raises
the issue to preserve it for further review.
      To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   Borjas contends that the presumption should not be applied
because § 2L1.2 lacks an empirical basis, but he concedes the issue is
foreclosed, and he raises the issue only to preserve it for further review. See
United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).




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                                  No. 14-51161

      We have rejected challenges to the substantive reasonableness of a
sentence based on the same international-trespass, lack-of-empirical-basis,
and double-counting arguments raised in this appeal. See Duarte, 569 F.3d at
530-31; United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Moreover, the record does not reflect that Borjas’s sentence fails to “account
for a factor that should receive significant weight, . . . gives significant weight
to an irrelevant or improper factor, or . . . represents a clear error of judgment
in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009). Borjas’s dissatisfaction with the district court’s weighing of
the § 3553(a) sentencing factors is insufficient to rebut the presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
He has failed to demonstrate plain error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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