### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-51097 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDUARDO DIAZ-MELENDEZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:10-CR-1483-1

Before DeMOSS, PRADO, and OWEN, Circuit Judges. PER CURIAM: * Eduardo Diaz-Melendez (Diaz) appeals followin g hi s guilty plea conviction of illegal reentry of the United States after deportation. He was sentenced to a 5 7

- m o nth term of imprisonment and to three years of supervised release. H e contends that the 57-month sentence is substantively u nreasonable because it is greater t h a n n e c essary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 1, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-51097 Document: 00511941236 Page: 1 Date Filed: 08/01/2012No. 11-51097

Conceding that he failed to object i n t h e d i strict court, Diaz asserts that plain error review should not apply because no objection is required to preserve the issue of the substantive r e a s o nableness of a sentence. He acknowledges, however, that the issue is foreclosed, a n d h e r a i s e s it to preserve the issue for further review. We have held that a defendant’s failure to object at sentencing to the reasonableness o f h is sentence triggers plain error review. See United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007). Even if we reviewed for

an abuse of discretion, his arguments are unavailing. See Gall v. United States , 552 U.S. 38, 51 (2007) (reviewing a substantive reasonableness of a sentence for an abuse of discretion). Because the sentence was within the properly calculated guidelines range of 4 6 t o 57 months of imprisonment, it is entitled to a presumption of reasonableness. See United States v. Campos-Maldonado , 531 F.3d 337, 338 (5th Ci r . 2 0 0 8)

. “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it r e p r e s e n ts a clear error of judgment in balancing sentencing factors.” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). The district court determin e d that a sentence at the high end of the guideline s range was appropriate in light of Diaz’s extensive criminal record, which include d s everal convictions of transporting illegal aliens. Diaz is essentially requesting us to reweigh the sentencing factors of § 3553(a), but we
are not permitted to do so. See Gall , 552 U.S. at 51. Diaz has not shown a clear

error of judgment on the district court’s part in balancing the § 3553(a) factors. See Cooks , 589 F.3d at 176. He has thus failed to rebut the presumption of reasonableness that we app l y t o h is within-guidelines sentence. See Campos-Maldonado , 531 F.3d at 338. D i az contends that the presumption of reasonableness should not b e applied to his sentenc e b ecause the illegal reentry guideline, without an 2 Case: 11-51097 Document: 00511941236 Page: 2 Date Filed: 08/01/2012No. 11-51097

empirical basis, double counts a defendant’s criminal history. He ra i s e s this argument to preserve the issue for further review because, as he acknowledges, it is foreclosed. See United States v. Duarte , 569 F.3d 528, 530-3 1 ( 5 t h Cir. 2009); United States v. Mondragon-Santiago , 5 6 4 F.3d 357, 366-67 (5th Cir. 2009).As Diaz has not shown any error, much less plain error, the judgment of the district court is AFFIRMED.

3 Case: 11-51097 Document: 00511941236 Page: 3 Date Filed: 08/01/2012