     Case: 11-50072     Document: 00511638883         Page: 1     Date Filed: 10/20/2011




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

                                                                            FILED
                                                                         October 20, 2011
                                     No. 11-50072
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MOISES GUTIERREZ-CASTRO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-1572-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
        Moises Gutierrez-Castro appeals the 46-month sentence of imprisonment
imposed following his guilty plea conviction of illegal reentry of the United
States after deportation. He contends that his within-guidelines sentence was
greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.
§ 3553(a) and, thus, it was substantively unreasonable.
        More specifically, Gutierrez argues that the illegal reentry guideline,
U.S.S.G. § 2L1.2, is flawed because it lacks an empirical basis. He contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50072

that, by double counting his prior alien transportation offense, the guidelines
overstated the necessary sentence. He maintains that the guidelines did not
accurately reflect the seriousness of his illegal reentry offense, which he
characterizes as an international trespass. Finally, Gutierrez argues that the
guidelines range failed to account for the circumstances of his offense and his
personal history. In this regard, he contends that his offense is mitigated by the
fact that he reentered the United States in an attempt to support his four
children and his wife, who is going blind.
      Because Gutierrez did not object to the reasonableness of the sentence
imposed and he did not raise in the district court the specific issues he seeks to
raise on appeal, review is for plain error.                See United States v.
Mondragon-Santiago, 564 F.3d 357, 360-61 (5th Cir. 2009). To show plain error,
Gutierrez must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429
(2009). If he 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.
      We have previously considered and rejected the contention that the illegal
reentry Guidelines impermissibly double count a defendant’s prior criminal
history, as well as the contention that the Guidelines overstate the seriousness
of an illegal reentry offense based on the assertion that this is effectively only an
international trespass offense. See United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Similarly, Gutierrez’s asserted motive for reentering the United States does not
establish that the district court plainly erred by imposing a within guidelines
sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008).
      The district court considered the arguments Gutierrez made at sentencing,
the facts of the case, and the appropriate statutory sentencing factors before

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                                  No. 11-50072

concluding that a within-guidelines sentence was appropriate. Further, the
record does not suggest that district court considered any irrelevant or improper
factors or that it made an error in judgment in weighing the sentencing factors.
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct.
1930 (2010). Gutierrez’s mere disagreement with the district court’s assessment
of an appropriate sentence is insufficient to establish plain error and to rebut the
presumption that his sentence is reasonable. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010).
      Gutierrez raises one additional argument, which he acknowledges is
foreclosed by our precedent, to preserve for further review. He argues that the
presumption of reasonableness should not be applied to his sentence because
U.S.S.G. § 2L1.2, the illegal reentry Guideline, lacks an empirical basis.
Mondragon-Santiago, 564 F.3d 357 at 366-67.
      AFFIRMED.




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