REVISED SEPTEMBER 30, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51239

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAUL BARAJAS-RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-2322-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Raul Barajas-Ramirez (Barajas) pleaded guilty to one count of illegal

reentry following removal. After hearing arguments from Barajas for a sentence

at the low end of the guidelines range, the district court imposed a sentence of

96 months in prison, at the top of the range. Barajas made no objection. He now

challenges his sentence as unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2013

Lyle W. Cayce

Clerk

* 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. 12-51239

We ordinarily review sentences for reasonableness under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 52 (2007). However, as

Barajas concedes, the failure to object to the reasonableness of the sentence

imposed results in plain error review. See United States v. Peltier, 505 F.3d 389,

391-92 (5th Cir. 2007). Nevertheless, even under the ordinary standard, Barajas

is not entitled to relief.

When, as here, a district court imposes a sentence within a properly

calculated guidelines range, the sentence is entitled to a rebuttable presumption

of reasonableness. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

Barajas asserts that his sentence is unreasonable because the illegal reentry

Guideline (U.S.S.G. § 2L1.2) lacks an empirical basis, gives too much weight to

prior convictions in determining the offense level, and results indouble-counting. 

We have rejected similar challenges. United States v. Duarte, 569 F.3d 528,

529-31 (5th Cir. 2009). In a similar vein, Barajas argues that § 2L1.2 lacks an

empirical basis such that the presumption of reasonableness should not apply. 

As he properly concedes, this argument is foreclosed. See id.; see also United

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009) (holding

same in plain error context). Barajas argues that his sentence overstates the

seriousness of his unlawful entry offense because, he contends, it is a non-violent

“international trespass.” We have rejected such arguments. See United States

v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).

Next, Barajas asserts that the guidelines range did not account for his

personal circumstances, namely, that he was brought to the United States at 15;

that he attended high school in Seattle and worked there as a cook for years;

that at one time, he obtained permanent legal resident status;that his substance

abuse issues resulted in his removal from the United States; and that he

returned to the United States to be with his family. The district court

considered Barajas’s arguments but concluded that, given Barajas’s lengthy

criminal history, a sentence at the top of the range was required to satisfy the

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No. 12-51239

sentencing goals under 18 U.S.C. § 3553(a) of providing just punishment,

promoting respect for the law, deterring future crimes, and protecting the public. 

Barajas’s mere disagreement with the weight the court gave the various

§ 3553(a) factors is not enough to rebut the presumption of reasonableness. See

United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

AFFIRMED.

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