     Case: 13-50147       Document: 00512442493         Page: 1     Date Filed: 11/15/2013




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

                                                                            FILED
                                                                        November 15, 2013
                                     No. 13-50147
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

AGUSTIN TEPEZANO-BEJARANO, also known as Agustin Tepezano-Bejarno,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2564-1


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Agustin Tepezano-Bejarano challenges, as substantively unreasonable, his
46-month within-Guidelines sentence for illegal reentry after removal. He
maintains Guideline § 2L1.2 (unlawful reentry) lacks an empirical basis and
double counts criminal history, his motive for returning to the United States was
benign, and illegal reentry is a non-violent offense. “[A] sentence within a
properly calculated Guideline [sentencing] range is presumptively reasonable”.
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-50147     Document: 00512442493     Page: 2   Date Filed: 11/15/2013

                                  No. 13-50147

      Regarding his claim that Guideline § 2L1.2 is not supported by empirical
data, Tepezano recognizes this contention is foreclosed, but he raises it to
preserve it for possible future review. See United States v. Duarte, 569 F.3d 528,
530-31 (5th Cir. 2009).
      Our court previously has rejected the other contentions presented by
Tepezano regarding the reasonableness of a sentence.          See id. at 530-31
(application of unlawful-reentry Guideline causes double-counting of criminal
history); United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008)
(benign motive for reentry rendered sentence unreasonable); United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (illegal reentry is a mere
trespass offense).   The district court considered Tepezano’s contentions in
mitigation of his sentence and determined a sentence at the bottom of the
applicable advisory Guidelines sentencing range was appropriate. There is no
basis on which to disturb the presumption of reasonableness in this case. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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