     Case: 12-50751       Document: 00512264652         Page: 1     Date Filed: 06/06/2013




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

                                                                            FILED
                                                                            June 6, 2013
                                     No. 12-50751
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MILTON JOEL ANDARADE-VALLE, also known as Milton Joel Andrade-Valle,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1853-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Milton Joel Andarade-Valle challenges his 90-month, within-Guidelines
sentence as substantively unreasonable because it is greater than necessary to
meet the sentencing goals of 18 U.S.C. § 3553(a). He contends: the illegal
reentry Guideline, § 2L1.2, is unreasonable because it lacks an empirical basis;
under the Guideline, his prior drug-trafficking conviction was used to increase
his offense level and criminal-history score, resulting in double counting; the
advisory Guidelines sentencing range failed to account for his mitigating

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50751

personal history and characteristics; and a presumption of reasonableness
should not apply to a within-Guidelines sentence imposed under § 2L1.2. He
concedes this last issue is foreclosed, see United States v. Duarte, 569 F.3d 528,
530-31 (5th Cir. 2009), and raises it only to preserve it for possible further
review.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Because Andarade does not claim procedural error, we consider only the
“substantive     reasonableness     of   the    sentence     imposed    under     an
abuse-of-discretion standard”. Gall, 552 U.S. at 51.
      Andarade’s claiming § 2L1.2 is unreasonable because it is not empirically
based is foreclosed by our court’s precedent. See Duarte, 569 F.3d at 529-31.
Also foreclosed is his contending a sentence imposed pursuant to § 2L1.2 is
greater than necessary to meet § 3553(a)’s goals as a result of any double
counting inherent in that Guideline. See id. at 529-31. Further, the record
reflects the court balanced Andarade’s mitigation factors against other § 3553(a)
factors, including the need for adequate deterrence and the need to protect the
public from further crimes. The court stated a within-Guidelines sentence of 90
months was “not only appropriate but necessary to serve all the statutory
purposes that [the court] outlined”.
      Andarade has failed to show his within-Guidelines sentence “does not
account for a factor that should receive significant weight, . . . gives significant
weight to an irrelevant or improper factor, or . . . represents a clear error of

                                         2
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                                  No. 12-50751

judgment in balancing sentencing factors”. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). The presumption of reasonableness will not be disturbed.
E.g., Cooks, 589 F.3d at 186; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      AFFIRMED.




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