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

No. 13

- 50284 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ANDRES MEDINA

- MARTINEZ , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:12

- CR

- 1115

- 1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Andres Medina

- Martinez appeals the 27

- month within guidelines sentence imposed by the district court following his entry of a guilty plea to an indictment that charged him with illegal reentry into t he United States after deportation. He argues that his sentence is unreasonable because it is greater than necessary in view of the 18 U.S.C. § 3553(a) factors . He asserts that U.S.S.G. § 2L1.2 double

- counted his criminal history in calculating his offen se

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances se t forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 23, 2014

Lyle W. Cayce Clerk Case: 13-50284 Document: 00512510671 Page: 1 Date Filed: 01/23/2014No. 13

- 50284 level and his criminal history category. He further asserts that § 2L1.2 gives disproportionate weight to his prior conviction for making a false claim to citizenship because the conviction increases his guidelines range despite its staleness . In addi tion, he contends that § 2L1.2 overstates the seriousness of his offense as it was essentially an international trespass. Finally, he contends that the guidelines range fails to reflect his personal history and characteristics. In the district court, Med ina

- Martinez objected to the recommended guidelines range on the grounds that the criminal history category substantially overstated his criminal history and the likelihood that he would commit additional crimes and on the basis that his prior offenses consisted mostly of driving offenses and not serious, violent, or dangerous acts. However, he did not object to the substantive reasonableness of his sentence in the district court on the particular grounds that he now raises ; therefore, our review is limited to p lain er ror. See United States v. Mondragon

- Santiago , 564 F.3d 357, 361 (5th Cir. 2009)

. To succeed on plain error review, he must show (1) a forfeited error (2) t hat is clear or obvious and (3) that a ffects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If the required showing is made, we may exercise our discretion “ to remedy the error . . . if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. ” Id. (internal quotation marks, bra cketing, and citation omitted). The district court considered Medina

- Martinez’s arguments , the Presentence Report, and the § 3553(a) factors and determined that a sentence within the correctly calculated advisory guidelines range was appropriate. The dis trict court determined that his prior convictions for driving while intoxicated were a threat to the public. Our circuit has rejected the argument

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- 50284

that the use of prior convictions to increase the offense level and also to calculate criminal history is im permissible double

- counting. See United States v. Duarte , 569 F.3d 528, 529

- 31 (5th Cir. 2009) . Medina

- Martinez’ s argument, that illegal reentry is not a serious offense but rather merely an international trespass, is also an argument that we have reject ed. United States v. Juarez

Duarte , 513 F.3d 204, 212 (5th Cir. 2 008)

. In addition , this c ourt has held that

“ the staleness of a prior conviction use d in the proper calculation of a guidelines

- range sentence does not render a sentence substantively unreasonable and does not destroy the presumption of reasonableness that attaches to such sentences. ” United States v. Rodriguez , 660 F.3d 231, 23 4 (5th Cir. 2011). Medina

- Martinez’s disagreement with the “ propriety of the sentence imposed ” is not suffic ient to rebut the presumption of reasonableness

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

. Because he has not shown that the district court failed to give proper weight to his arguments or any particular § 3553(a) factor , Medina

- Marti nez has fail ed to rebut the presumption of reasonableness that is accorded to his within

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

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