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 the 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 offense 

* 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

January 23, 2014

Lyle W. Cayce

Clerk

 

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No. 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 addition, 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, Medina-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 plain error. 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) that is clear or obvious and (3) that affects 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, bracketing, 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 

district 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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No. 13-50284

that the use of prior convictions to increase the offense level and also to 

calculate criminal history is impermissible 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 rejected. United States v. JuarezDuarte, 513 F.3d 204, 212 (5th Cir. 2008). In addition, this court has held that

“the staleness of a prior conviction used 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, 234 (5th 

Cir. 2011). Medina-Martinez’s disagreement with the “propriety of the 

sentence imposed” is not sufficient 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-Martinez has failed 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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