     Case: 15-50164      Document: 00513376050         Page: 1    Date Filed: 02/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50164
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 11, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MISAEL ANTONIO MARTINEZ-MORALES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-697-1


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Without a written plea agreement, Misael Antonio Martinez-Morales
pleaded guilty to illegally reentering the United States after being deported.
The court sentenced him at the bottom of the properly calculated guideline
range to 57 months in prison. He appeals the sentence, arguing that it is
greater than necessary to satisfy the sentencing factors of 18 U.S.C. § 3553(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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50164     Document: 00513376050        Page: 2    Date Filed: 02/11/2016


                                  No. 15-50164

      Typically, sentences are reviewed for reasonableness under an abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 46 (2007); Rita v.
United States, 551 U.S. 338, 351 (2007). The parties disagree about whether
our review should be only for plain error, but the appeal fails under the usual
standard. Under that standard, we first determine whether the district court
committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . .” Gall, 552 U.S. at 51. But
here there is no dispute as to procedural reasonableness, so we need only
consider the substantive reasonableness of the sentence for an abuse of
discretion. Id.
      The sentence within the properly calculated guideline range is presumed
to be reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Martinez-Morales argues that his sentence should not be presumed reasonable
because the illegal entry Guidelines are not empirically based. This argument
is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir. 2009). He also argues that a prior aggravated felony conviction was
unfairly counted in both his criminal history score and as a crime of violence
in his offense level. This double-counting argument also fails. See United
States v. Gaytan, 74 F.3d 545, 560 (5th Cir. 1996).            We have also found
unpersuasive Martinez-Morales’s assertion that a lesser sentence is warranted
because his crime was no more than an international trespass. See United
States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      Otherwise,     Martinez-Morales       notes    that     the   presumption     of
reasonableness is not binding, and he contends that the district court gave
improper weight to his personal history and other factors. He essentially asks
this court to substitute his assessment of the § 3553(a) sentencing factors for
the district court’s, which is contrary to the deferential review dictated by Gall.



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                                No. 15-50164

See Gall, 552 U.S. at 51. Mere disagreement with the sentence does not rebut
the presumption of reasonableness. See United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010).
      Martinez-Morales does not show that his sentence was unreasonable or
plainly erroneous. See Gall, 552 U.S. at 51; United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). The judgment is AFFIRMED.




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