     Case: 16-50107    Document: 00513786512   Page: 1   Date Filed: 12/06/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                               No. 16-50107                            FILED
                             Summary Calendar                   December 6, 2016
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JAVIER RODRIGUEZ-LOPEZ, also known as Juan Chairez-Lopez,

                                         Defendant-Appellant
___________________________________

Cons. w/No. 16-50259

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JAVIER RODRIGUEZ-LOPEZ, also known as Juan Charez-Gonzalez, also
known as Juan Charez Gonzalez, also known as Javier Rodriguez Lopez,

                                         Defendant-Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:15-CR-1635-1
                          USDC No. 3:10-CR-1980-1
     Case: 16-50107      Document: 00513786512         Page: 2    Date Filed: 12/06/2016


                                    No. 16-50107
                                 Cons. w/No. 16-50259

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Javier Rodriguez-Lopez appeals the 24-month sentence he received
following his guilty plea conviction for illegal reentry, as well as the consecutive
21-month sentence he received following the revocation of his supervised
release. He asserts that his combined sentence of 45 months is substantively
unreasonable, as it is greater than necessary to achieve the goals of 18 U.S.C.
§ 3553(a). Rodriguez-Lopez argues that this is so because the illegal-reentry
Guideline—U.S.S.G. § 2L1.2—lacks an empirical basis, because it effectively
double counts his criminal history, because illegal reentry is a nonviolent
offense, and because the district court failed to adequately consider his
personal history and characteristics, including his benign reasons for reentry.
       When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Rodriguez-Lopez must show “that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” Id.
       As he acknowledges, Rodriguez-Lopez’s argument that the presumption
of reasonableness should not apply to his illegal-reentry sentence because
U.S.S.G. § 2L1.2 lacks an empirical basis is foreclosed, and he raises it only to
preserve it for further review. See United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009). We likewise have previously rejected the


       * 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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    Case: 16-50107     Document: 00513786512   Page: 3    Date Filed: 12/06/2016


                               No. 16-50107
                            Cons. w/No. 16-50259

contention that a within-guidelines sentence is unreasonable because § 2L1.2
lacks an empirical basis and effectively double counts prior convictions. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); Mondragon-
Santiago, 564 F.3d at 366-67 & n.7. Also, we have not been persuaded by the
claim that the Sentencing Guidelines do not take into account the nonviolent
nature of an illegal-reentry offense. See United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008). Rodriguez-Lopez’s alleged benign motive for
returning to this country is insufficient to rebut the presumption of
reasonableness attached to his within-guidelines sentence. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Insofar as Rodriguez-Lopez challenges the fact that his revocation
sentence was ordered to be served consecutively to his non-revocation sentence,
his challenge is unavailing. Because his 21-month revocation sentence falls
within the applicable advisory policy range and is consistent with the mandate
of U.S.S.G § 7B1.3(f), p.s., it is entitled to a presumption of reasonableness.
See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008).
Rodriguez-Lopez      has made no     effort to rebut the      presumption of
reasonableness afforded his revocation sentence. See Cooks, 589 F.3d at 186.
      The judgment of the district court is AFFIRMED.




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