### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 50449 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. BERNARDO MACIAS

- ORTIZ , Defendant

- Appellant
Appeal from the United States District Court for the Western District of Texas USDC No. 3:14

- CR

- 2363

- 1

Before SMITH, BENAVID ES, and HAYNES, Circuit Judges. PER CURIAM: * Bernardo Macias

- Ortiz argues that the 46

- month within

- guidelines sentence imposed by the district court following his guilty plea convictions for attempted illegal reentry and improper use of another’s passport was greater than necessary to meet the goals of 18 U.S.C. § 3553(a) , including adequate deterrence , that U.S.S.G. § 2L1.2 is not empirically based, that § 2L1.2 double

counted his criminal history, and that the 16

- level enhancement for his prior

* Pursuant to 5 TH C IR
. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 28, 2015 Lyle W. Cayce Clerk Case: 15-50449 Document: 00513321918 Page: 1 Date Filed: 12/28/2015No. 15

- 50449

2 burglary conviction was too severe. He further assert s that his illegal reentry did not pose a danger to others. Finally, he argues that the advisory guidelines range does not reflect his cultural assimilation

. Because Macias

- Ortiz objected to the reasonableness of the sentence based on the grounds of cultural assimilation and the lack of a n empirical basis in § 2L1.2 in the district court, he preserved these issues for appellate review. See United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007). Although h e did not assert the other grounds he now raises , we will review the sentenc e for reasonableness under an abuse

- of

- discretion standard b ecause his within

guidelines sentence can be affirmed under either a plain

- error or an abuse

- of

discretion standard of review. Although Macias

- Ortiz argues that this court should not apply the pr esumption of reasonableness because § 2L1.2 lacks an empirical basis, he concedes that this argument is foreclosed by this court’s precedent

. See United States v. Mondrago n - Santiago , 564 F.3d 357, 366 (5th Cir. 2009). We ha ve rejected the argument that § 2L1.2 improperly double counts prior convictions. See id. at 366

- 67; United States v. Duarte , 569 F.3d 528, 529

- 31 (5th Cir. 2009)

. Further, w e have rejected the argument that § 2L1.2 overstates the seriousness of the offense. See United States v. Juar ez - Duarte , 513 F.3d 204, 212 (5th Cir. 2008). After consider ing Macias

- Ortiz’s arguments and the PSR , the district court determined that a sentence within the advisory guidelines range was reasonable based on his previous criminal history. The within

- gui delines sentence is entitled to a presumption of reasonableness. See United States v. Campos

- Maldonado , 531 F.3d 337, 338 (5th Cir. 2008) . His argument that the sentence is greater than necessary to meet the goals of § 3553(a) amounts to a disagreement w ith the district court’s balancing of the sentencing factors , and Case: 15-50449 Document: 00513321918 Page: 2 Date Filed: 12/28/2015No. 15

- 50449

3 we will not reweigh those factors. See Gall v. United States , 552 U.S. 38, 51

- 52 (2007) . His benign motive for returning to this country is insufficient to rebut the presumption of reasona bleness. See United States v. Gomez

- Herrera , 523 F.3d 554, 565

- 66 (5th Cir. 2008). His cultural assimilation argument is also insufficient. See id. ; United States v. Rodriguez , 660 F.3d 231, 234

- 35 (5th Cir. 2011). Because Macias

- Ortiz has failed to de monstrate that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor it should have discounted, or made a clear error of judgment when it balanced the relevant factors , he has not reb utted the presumption of reasonableness

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

. AFFIRMED. Case: 15-50449 Document: 00513321918 Page: 3 Date Filed: 12/28/2015