     Case: 14-50366       Document: 00512887143         Page: 1     Date Filed: 12/31/2014




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

                                     No. 14-50366
                                                                                      Fifth Circuit

                                                                                    FILED
                                   Summary Calendar                         December 31, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                  Plaintiff - Appellee

v.

OSMAN ERALDO AMAYA-TEJADA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-842-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Osman Eraldo Amaya-Tejada challenges the sentence imposed following
his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326
(criminalizing illegal reentry after, inter alia, deportation). He claims the 46-
month sentence is greater than necessary to meet the goals of 18 U.S.C.
§ 3553(a), and is, therefore, substantively unreasonable. Along that line, he
contends: the presumption of reasonableness should not apply because 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                  No. 14-50366

illegal-reentry Sentencing Guideline § 2L.1.2 lacks an empirical basis; the
Guideline provision applied double-counts his criminal history and overstates
the seriousness of his offense, which he asserts is an international trespass;
the sentence fails to reflect his personal history and characteristics; and the
court failed to properly consider his motive for returning to the United States
as mitigating the seriousness of his offense.
      Although post-Booker, the 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 advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, 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).
      The 46-month sentence imposed for Amaya’s illegal reentry offense was
within the advisory-Guideline range, and is, therefore, entitled to the
presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). Amaya concedes our precedent forecloses his claim that the
presumption of reasonableness does not apply because Guideline § 2L1.2 is not
empirically based; he raises the issue only to preserve it for possible further
review. E.g., United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009).
Our court has also rejected his double-counting and nonviolent-offense
contentions. Id.; United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006). Amaya’s motive to earn money to pay for his ill mother’s medical
expenses is not sufficient to justify a lower sentence or to rebut the
presumption of reasonableness. E.g., United States v. Gomez-Herrera, 523
F.3d 554, 565–66 (5th Cir. 2008). Amaya has not shown the district court failed



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                                No. 14-50366

to consider any significant factors, gave undue weight to any improper factors,
or clearly erred in balancing the sentencing factors. E.g., United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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