     Case: 14-50536      Document: 00512975270         Page: 1    Date Filed: 03/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50536
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 19, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ROGELIO MARTINEZ-ORDONEZ, also known as Adrian Martinez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-184-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Rogelio Martinez-Ordonez pleaded guilty, without the benefit of a plea
agreement, to illegal reentry.          He now challenges his 30-month prison
sentence, arguing that it is greater than necessary to achieve the purposes of
sentencing. Because he did not object to the sentence in the district court, our
review is for plain error. See United States v. Powell, 732 F.3d 361, 381 (5th
Cir. 2013).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50536

      None of Martinez-Ordonez’s arguments are sufficient to rebut the
presumption that his within-guidelines sentence is reasonable. See United
States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013). He first contends that the
district court’s application of the illegal reentry guideline resulted in a
sentence that was too harsh because the guideline increased his offense level
based on criminal history that was also taken into account in calculating his
criminal history score. Though it was within the district court’s discretion to
determine that the illegal reentry guideline generated a guidelines range that
was too harsh, see United States v. Gomez-Herrera, 523 F.3d 554, 557 n.1 (5th
Cir. 2008), the court was not required to do so, see United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      As for his assertion that his illegal reentry was nonviolent and victimless
and amounted, in his view, merely to an international trespass, we have
implicitly rejected the assertion that this characterization of the offense
renders a within-guidelines sentence unreasonable.              See United States v.
Aguirre-Villa, 460 F.3d 681, 682-83 (5th Cir. 2006).
      Martinez-Ordonez’s argument that his cultural assimilation justified a
shorter   sentence,   too,   is   insufficient   to    rebut    the   presumption    of
reasonableness. See United States v. Rodriguez, 660 F.3d 231, 232, 234-35 (5th
Cir. 2011). Though a defendant’s cultural assimilation can be a mitigating
factor at sentencing and even support a downward departure, a sentencing
court need not give this factor dispositive weight. Id.; see U.S.S.G. § 2L1.2,
comment. (n.9).
      Finally, Martinez-Ordonez complains that the sentence did not account
for his personal history because, he says, it did not reflect that all of his prior
convictions were alcohol-related and that his alcoholism is a disease that the
court should have found to be a mitigating factor. The district court heard and



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                                 No. 14-50536

understood this argument, but nothing required it to impose a more lenient
sentence on this basis. Martinez-Ordonez may disagree with the weight that
the court gave to this argument, but we will not reweigh the sentencing factors.
See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011).
      Martinez-Ordonez has failed to show that the district court did not
consider a factor that should have received significant weight, gave significant
weight to a factor it should have discounted, or made a clear error of judgment
when it balanced the relevant factors. See Jenkins, 712 F.3d at 214. He thus
has not rebutted the presumption that his within-guidelines sentence is
reasonable, much less has he shown that the district court committed plain
error. See id.
      AFFIRMED.




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