     Case: 11-50561     Document: 00511828864         Page: 1     Date Filed: 04/20/2012




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

                                                                            FILED
                                                                           April 20, 2012
                                     No. 11-50561
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE SANTILLAN DE LA CRUZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-521-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jorge Santillan De La Cruz (Santillan) pleaded guilty to attempted illegal
reentry after deportation (8 U.S.C. § 1326) and making a false claim to United
States citizenship (18 U.S.C. § 911).            He was sentenced to 72 months of
imprisonment and 36 months of imprisonment to run concurrently, and three
years and one year of supervised release, also concurrent. Santillan challenges
the substantive reasonableness of his sentence, arguing that his sentence is
unreasonable because it is greater than necessary to achieve the sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50561

goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry Guideline,
U.S.S.G. § 2L1.2, is not empirically based and double counts the defendant’s
criminal history. He argues, in reliance on Kimbrough v. United States, 552 U.S.
85, 109-10 (2007), that the presumption of reasonableness should not apply, but
he concedes that his argument is foreclosed by United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and he raises the argument to
preserve it for possible review by the Supreme Court. He further argues that the
guideline range overstated the seriousness of the offense, which was essentially
a trespass, and failed to account for his benign motive for reentering, which was
out of fear of being murdered in Juarez.
      Because Santillan did not make any objections to his sentence or argue in
the district court that his sentence was unreasonable, his arguments are
reviewable only for plain error. See Puckett v. United States, 556 U.S. 129, 134-
35 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007)
(requiring objection to substantive unreasonableness of sentence to preserve
error).
      As he so concedes, Santillan’s argument that the presumption of
reasonableness 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) (rejecting the notion that this court should examine
the empirical basis behind each Guideline before applying the presumption of
reasonableness); see also Mondragon-Santiago, 564 F.3d at 366-67. Santillan’s
argument that his guidelines range was greater than necessary to meet
§ 3553(a)’s goals as a result of “double counting” is unavailing. The Guidelines
provide for consideration of a prior conviction for both criminal history and the
§ 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have also rejected the
argument that such double-counting necessarily renders a sentence
unreasonable. See Duarte, 569 F.3d at 529-31. We have previously rejected the
argument that illegal reentry is merely a trespass offense that is treated too

                                       2
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                                 No. 11-50561

harshly under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683
(5th Cir. 2006).
      The district court heard the arguments of Santillan and his counsel
concerning his reasons for reentering the United States before imposing a
sentence within the advisory guideline range. The district court considered
Santillan’s personal history and characteristics and the other statutory
sentencing factors in § 3553(a), in particular Santillan’s extensive criminal
history, prior to imposing a sentence within the Guidelines. Santillan’s within-
guidelines sentence is entitled to a presumption of reasonableness. See Rita v.
United States, 551 U.S. 338, 347 (2007). Santillan has failed to show that the
presumption should not apply. The district court did not abuse its discretion,
much less plainly err, in imposing a sentence within the advisory guideline
range. See Gall v. United States, 552 U.S. 38, 50-51 (2007). Accordingly, the
judgment of the district court is AFFIRMED.




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