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, BENAVIDES, 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 doublecounted his criminal history, and that the 16-level enhancement for his prior 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2015

Lyle W. Cayce

Clerk

 Case: 15-50449 Document: 00513321918 Page: 1 Date Filed: 12/28/2015
No. 15-50449

2

burglary conviction was too severe. He further asserts 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 an 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 he 

did not assert the other grounds he now raises, we will review the sentence for 

reasonableness under an abuse-of-discretion standard because his withinguidelines sentence can be affirmed under either a plain-error or an abuse-ofdiscretion standard of review.

Although Macias-Ortiz argues that this court should not apply the 

presumption 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. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 2009). We have

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, we have rejected the argument that § 2L1.2 overstates the 

seriousness of the offense. See United States v. Juarez-Duarte, 513 F.3d 204, 

212 (5th Cir. 2008).

After considering 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-guidelines 

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 with the district court’s balancing of the sentencing factors, and 

 Case: 15-50449 Document: 00513321918 Page: 2 Date Filed: 12/28/2015
No. 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 reasonableness. 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 demonstrate 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 rebutted 

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