     Case: 15-50666      Document: 00513414669         Page: 1    Date Filed: 03/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50666
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 10, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDGAR MACARIO HERNANDEZ-LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-376-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Edgar Macario Hernandez-Lopez (Hernandez) appeals his 20-month
within-guidelines sentence imposed following his guilty plea conviction for
illegal reentry. Hernandez contends that his within-guidelines sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a).            Specifically, he asserts that the
U.S.S.G. § 2L1.2 illegal reentry sentencing guideline should not be afforded a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50666    Document: 00513414669          Page: 2    Date Filed: 03/10/2016


                                   No. 15-50666

presumption of reasonableness because it is not empirically based, double
counts certain predicate criminal convictions, overstates the seriousness of the
illegal reentry offense, and does not provide just punishment for the offense.
Hernandez further argues that his sentence fails to reflect his personal history
and characteristics, namely, that he is 30 years of age, he was brought to the
United States when he was a child, he has a wife and three children, he has a
child that suffers from cerebral palsy, and he returned to the United States to
find work to support his family.
      We need not decide this case under plain error review, because
Hernandez’s sentence can be affirmed under an abuse of discretion. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). When a sentence falls
within a properly calculated guidelines range, we apply a rebuttable
presumption of reasonableness. United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
      Hernandez’s    empirical     basis       challenge   to   the   presumption    of
reasonableness is foreclosed. See United States v. Mondragon-Santiago, 564
F. 3d 357, 366 (5th Cir. 2009). We have rejected the argument that a sentence
imposed under § 2L1.2 is substantively unreasonable because certain predicate
criminal convictions are double counted in the computation of a defendant’s
guidelines range. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009).   We have also rejected the assertion that § 2L1.2 overstates the
seriousness of illegal reentry. See United States v. Juarez-Duarte, 513 F.3d
204, 212 (5th Cir. 2008). Finally, Hernandez’s contention that his sentence
fails to reflect his personal history and characteristics is nothing more than a
disagreement with the district court’s weighing of the § 3553(a) factors, which
is insufficient to show an abuse of discretion. See United States v. Lopez-
Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.

                                           2
