     Case: 12-50272       Document: 00512118988         Page: 1     Date Filed: 01/21/2013




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

                                                                            FILED
                                                                         January 21, 2013
                                     No. 12-50272
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERICK PUNTOS-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1516-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Erick Puntos-Hernandez (Puntos) appeals the 44-month within-guidelines
sentence imposed upon his guilty plea conviction for illegal reentry. See 8 U.S.C.
§ 1326. He argues that his sentence was greater than necessary to achieve the
sentencing goals of 18 U.S.C. § 3553(a) and was therefore unreasonable. Puntos
complains that for illegal reentry (unlike other offenses), the defendant’s
criminal record is counted in both the offense level calculation and the criminal
history score. The illegal reentry guideline produced a sentencing range that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50272

overstated the seriousness of his illegal reentry offense, failed to provide just
punishment, and undermined respect for the law, he argues. His 44-month
sentence, he argues, was excessive and created an unwarranted disparity in
sentencing when compared to the 2010 median sentence of 15 months for illegal
reentry. He notes that his illegal reentry offense was not a crime of violence or
of moral turpitude, but rather, was a statutory violation. Finally, argues Puntos,
the high guideline range of imprisonment did not reflect his personal history and
characteristics in that he apologized to the court and promised not to return to
the United States again.
      Since Puntos did not raise any objections to his sentence, review is for
plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      Puntos’s argument that the illegal reentry guideline is “problematic”
because it accounts for a prior conviction in both his criminal history and his
offense level is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir. 2009). This court has rejected the argument that the Guidelines overstate
the seriousness of illegal reentry because it is simply an international trespass
offense (or, as Puntos calls it, a statutory violation). See United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      The record reveals that, contrary to Puntos’s assertion, the district court
did take into consideration his personal history and circumstances, i.e., his
apology to the court, his promise not to return, that he has only nine years of
education, that he was married and has a child, that the child’s mother (his ex-
wife) explained the circumstances behind his 2003 family violence conviction,
and that the conviction was more than nine years old. Moreover, Puntos has not
shown that his sentence does not account for a factor that should have received
significant weight, “gives significant weight to an irrelevant or improper factor,”
or “represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He has therefore failed to
rebut the presumption of reasonableness applicable to his sentence. See id.

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                                  No. 12-50272

      The district court did not err, much less plainly err, in imposing a sentence
within the properly calculated guideline range. See Puckett v. United States, 556
U.S. 129, 135 (2009).
      AFFIRMED.




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