     Case: 11-50364     Document: 00511711674         Page: 1     Date Filed: 01/03/2012




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

                                                                            FILED
                                                                          January 3, 2012
                                     No. 11-50364
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL ANTONIO MARINELARENA-RAMOS, also known as Rafael Ramos
Diaz, also known as Miguel Marinelarena,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2384-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Miguel Antonio Marinelarena-Ramos (Marinelarena) appeals the sentence
imposed upon his guilty plea conviction for illegal reentry and improper use of
another’s passport. See 8 U.S.C. § 1326(a); 18 U.S.C. § 1544. He argues that his
within-guidelines sentence of 27 months is unreasonable in that it is greater
than necessary to accomplish the goals of sentencing set forth in 18 U.S.C.
§ 3553(a). He contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50364    Document: 00511711674      Page: 2    Date Filed: 01/03/2012

                                  No. 11-50364

flawed because it is not empirically based and it double counts his prior drug
trafficking conviction. For these reasons, Marinelarena contends that the
presumption of reasonableness afforded to within-guidelines sentences should
not be applied to his sentence. The Guidelines also failed to account for the
seriousness of his illegal reentry offense, he argues, in that it was essentially
nothing more than an international trespass. Finally, Marinelarena argues that
the Guidelines did not account for his personal history and circumstances and
that the district court did not give enough weight to this factor.
      Because Marinelarena did not object to the reasonableness of the sentence
imposed and he did not raise in the district court the 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). Marinelarena’s argument that plain error does
not apply is, as he concedes, foreclosed. Id. To show plain error, Marinelarena
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.
      As Marinelarena concedes, his argument that § 2L1.2 lacks an empirical
basis and involves double-counting of a prior offense is foreclosed. Mondragon-
Santiago, 564 F.3d at 366-67; United States v. Duarte, 569 F.3d 528, 529-30 (5th
Cir. 2009). He recognizes that Mondragon-Santiago also forecloses his argument
that the presumption of reasonableness should not be applied to a sentence
calculated under the allegedly empirically flawed § 2L1.2. See Duarte, 569 F.3d
at 529-30.
      This court has implicitly rejected the argument that the Guidelines
overstate the seriousness of illegal reentry because it is simply an international
trespass. See, e.g., United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).

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                                 No. 11-50364

      As for the court’s consideration of his personal history and circumstances,
the record shows that the district court considered the arguments Marinelarena
made at sentencing, the facts of the case, and the appropriate statutory
sentencing factors before 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). Marinelarena’s 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).
      AFFIRMED.




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