     Case: 13-50394      Document: 00512440997         Page: 1    Date Filed: 11/14/2013




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

                                    No. 13-50394                                   FILED
                                  Summary Calendar                         November 14, 2013
                                                                              Lyle W. Cayce
                                                                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

JOSE LUIS GAMEZ,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 4:13-CR-21-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       Jose Gamez pleaded guilty of illegal reentry following deportation in



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50394

violation of 8 U.S.C. § 1326 and was sentenced within the guideline range to
fifty-seven months of imprisonment. For the first time on appeal, he challenges
the reasonableness of his sentence, claiming it is greater than necessary to
achieve the sentencing goals of 18 U.S.C. § 3553(a). Gamez contends that the
illegal-reentry guideline, U.S.S.G. § 2L1.2, is not empirically based and double-
counts criminal history. He additionally argues that the presumption of rea-
sonableness should not apply to a sentence based on that guideline, but he
concedes that the argument is foreclosed by United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and he raises the issue to
preserve it for possible further review.     He further argues that the rec-
ommended guideline range overstated the seriousness of the offense and failed
to account for his personal circumstances and motive for reentry.
      Because Gamez did not contest reasonableness in the district court, his
argument is reviewable for plain error only. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). Gamez acknowledges that his failure to object
results in the application of the plain-error standard of review, conceding that
the issue is foreclosed by Peltier; he notes that the circuits are divided on
whether a failure to object to the reasonableness of the sentence upon its
imposition requires plain-error review, and he seeks to preserve the issue for
possible review by the Supreme Court.
      As Gamez correctly concedes, the argument that the presumption of rea-
sonableness should not apply to his sentence because § 2L1.2 lacks empirical
support has been rejected by this court. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009); see also Mondragon-Santiago, 564 F.3d at 366-67.
Gamez’s argument that his guideline range was greater than necessary to meet
§ 3553(a)’s goals as a result of “double counting” is likewise unavailing. See
Duarte, 569 F.3d at 529-31. This court has also previously rejected the notion



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                                No. 13-50394

that illegal reentry is merely a trespass offense that is treated too harshly
under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
      The record reflects that the district court considered Gamez’s mitigation
arguments but rejected them in favor of a guideline sentence. The within-
guidelines sentence is entitled to a presumption of reasonableness. See Rita v.
United States, 551 U.S. 338, 347 (2007). Gamez’s contention concerning his
motive for reentry fails to rebut the presumption of reasonableness attached to
his within-guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). Gamez has failed to show that the sentence is
plain error. See Peltier, 505 F.3d at 391-92. Accordingly, the judgment is
AFFIRMED.




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