     Case: 13-50460      Document: 00512631350         Page: 1    Date Filed: 05/15/2014




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

                                    No. 13-50460
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                       May 15, 2014
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

CARLOS CASTILLO-ALVARADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-1372


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Carlos Castillo-Alvarado appeals the 51-month, within-guidelines
sentence imposed following his conviction of illegal reentry into the United
States following removal.         He argues that the sentence is substantively
unreasonable and greater than necessary to meet the goals of 18 U.S.C.
§ 3553(a). He asserts that the Guidelines failed to account for his personal
history and circumstances, including that he has no prior immigration offenses


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50460     Document: 00512631350      Page: 2   Date Filed: 05/15/2014


                                  No. 13-50460

and his sole reason for reentering was to provide financial assistance to his son
who is attending college in Virginia on a student permit. He contends that
U.S.S.G. § 2L1.2 double counted his prior conviction and overstated the
seriousness of his criminal history. He maintains that the presumption of
reasonableness should not apply to his sentence because § 2L1.2 is not
supported by empirical data, but acknowledges that the argument is foreclosed
by United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Although Castillo-Alvarado acknowledges that this court applies plain
error review when a defendant fails to object to the reasonableness of the
sentence, he contends that the proper standard of review is abuse of discretion.
Because he did not object to the substantive reasonableness of the sentence in
the district court, review is limited to plain error. See United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007).
      The district court considered Castillo-Alvarado’s request for a downward
variance and ultimately determined that a sentence within the advisory
guidelines range was appropriate under the circumstances and the § 3553(a)
factors. Castillo-Alvarado’s arguments that § 2L1.2 lacks an empirical basis,
double counts his criminal history, overstates the seriousness of his criminal
history, and does not take into account his personal history and characteristics,
are insufficient to rebut the presumption of reasonableness. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Castillo-Alvarado has
failed to show that his 51-month within-guidelines sentence is substantively
unreasonable, and there is no reversible plain error.
   AFFIRMED.




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