     Case: 11-51054     Document: 00511995153         Page: 1     Date Filed: 09/21/2012




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

                                                                            FILED
                                                                        September 21, 2012
                                     No. 11-51054
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SERGIO RODRIGUEZ-RIOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-496-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Sergio Rodriguez-Rios (Rodriguez) appeals the 60-month within-guidelines
sentence he received following his guilty plea to illegal reentry. Rodriguez
argues that his sentence is greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a). He specifically contends that the guidelines sentencing
range was too severe because the district court failed to consider that his reentry
offense was at bottom a mere trespass, did not consider his benign motives for
returning to the United States, and did not consider that it was his first illegal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51054   Document: 00511995153     Page: 2   Date Filed: 09/21/2012

                                  No. 11-51054

reentry offense. He further contends that his sentence is not entitled to a
presumption of correctness because the illegal reentry guideline, U.S.S.G.
§ 2L1.2, is not empirically based, given that it double-counts a defendant’s
criminal history.
      Conceding that he failed to object in the district court, Rodriguez asserts
that plain error review should not apply because no objection is required to
preserve the issue of the substantive reasonableness of a sentence.              He
acknowledges, however, that the issue is foreclosed, and he raises it to preserve
the issue for further review. We have held that a defendant’s failure to object
at sentencing to the reasonableness of his sentence triggers plain error review.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Even if we
reviewed for an abuse of discretion, his arguments are unavailing. See Gall v.
United States, 552 U.S. 38, 51 (2007) (reviewing a substantive reasonableness
of a sentence for an abuse of discretion).
      As he concedes, Rodriguez’s empirical data argument is foreclosed by this
court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009); United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
We have rejected the argument that a guidelines sentence under § 2L1.2 is
unreasonable because illegal reentry is a mere trespass offense. See United
States v. Aguirre-Villa, 460 F.3d 681 683 (5th Cir. 2006).        Furthermore,
Rodriguez’s sentence, which is at the low end of the applicable guidelines range,
is presumed reasonable. See United States v. Newson, 515 F.3d 374, 379 (5th
Cir. 2008). His general disagreement with the propriety of his sentence and the
district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Rodriguez has not demonstrated that the district court erred, much less
plainly erred, by sentencing him to a within-guidelines sentence of 60 months

                                        2
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                                No. 11-51054

in prison. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. Consequently,
the judgment of the district court is AFFIRMED.




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