     Case: 12-50698       Document: 00512287785         Page: 1     Date Filed: 06/26/2013




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

                                                                            FILED
                                                                           June 26, 2013
                                     No. 12-50698
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICARDO ADONAY MENDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1730-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ricardo Adonay Mendez (Mendez) appeals the sentence imposed following
his guilty plea conviction for being unlawfully present in the United States
following removal.        Mendez argues that his sentence was substantively
unreasonable. He maintains that his within-guidelines range sentence should
not be considered presumptively reasonable because U.S.S.G. § 2L1.2 is not
empirically based, but he acknowledges that this argument is foreclosed. He
asserts that the guidelines sentence range was excessive because § 2L1.2 double

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50698

counted his prior convictions and because his offense was a mere trespass. He
contends that the sentence failed to account for his personal history and
characteristics because it did not reflect sufficient consideration for his father
abandoning him, his mother abusing him, and his growing up on the streets.
      In the district court, Mendez did not object to the substantive
reasonableness of the sentence. Mendez argues that such an objection is not
required to preserve the substantive reasonableness of a sentence for review, but
he acknowledges that this argument is foreclosed by circuit precedent and raises
the issue to preserve it for further review.        Accordingly, we review the
substantive reasonableness of the sentence for plain error only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error
standard, Mendez must show a clear or obvious forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
Mendez makes such a showing, we have discretion to correct the error but
should do so only if the error seriously affects the fairness, integrity, or public
reputation of the proceedings. See id.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). As Mendez concedes, his argument that his within-guidelines range
sentence should not be considered presumptively reasonable because § 2L1.2 is
not empirically based is foreclosed. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009).     The fact that this court “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007). The
district court had before it both mitigating and aggravating factors. The district
court balanced these factors, and it determined that a sentence near the bottom
of the guidelines range was appropriate. We conclude there is no reason to
disturb the presumption of reasonableness in this case. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Considering the totality

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                                 No. 12-50698

of the circumstances, as we must, see Gall, 552 U.S. at 51, Mendez has not
shown that the sentence was plainly erroneous. See Rita v. United States, 551
U.S. 338, 359-60 (2007); Peltier, 505 F.3d at 392-94.
      AFFIRMED.




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