### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50318 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. APOLINAR ESTRADA-LOYA, also known as Apolinar Santillana-Castillo, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-2227-1

Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges. PER CURIAM: * Apolinar Estrada-Loya (Estrada) was s e n t e n ced to a 30-month term of imprisonment following his guilty plea t o illegal reentry of a deported alien. See 8 U.S.C. § 1326. Estrada a rgues that (1) his sentence, which is at the t o p of the advisory guidelines r ange of 24 to 30 months of imprisonment, is unreasonable because it is gr e a t e r t h a n necessary as measured b y the factors identified in 18 U.S.C. § 3553(a); (2) the illegal reentry G uideline, U.S.S.G. § 2L1.2, lacks an empirical b asis a n d c a n result in a guidelines range that exceeds § 3 553(a)’s U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 4, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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sentencing goals; (3) the Guideline gives heavy weight to prior c onvictions, effectively double-counting t h e d efendant’s criminal record; (4) the Guideline overstated the seriousness of h is offense, which w as not evil and “ w as, at bottom,

an international trespass”; and (5) the guidelines range failed to account for his personal history and characteristics. Estrada does not contend that the district court committed any procedural

error in imposing his sentence but, rather, a rgues that the sentence is substantively unreasonable. See Gall v. U nited States , 5 5 2 U

. S

. 38, 4 9-51 (2007). Review is limited to plain error because Estra d a f a i l e d to challenge the reasonableness of his sentence in the district court. See Puckett v. United States , 556 U.S. 129, 134-35 ( 2009); United States v. Peltier , 5 05 F.3d 389, 391-92 (5th Cir. 2007). T o show plain error, Estrada must s how a forfeited error that is clear

or obvious and that affects his substantial r ights. See Puckett , 556 U.S. at 135. If Estrada makes s uch a showing, this court has the discretion t o correct the

error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id

. We have consistently rejected Estrada’s “double counting” argument and his argument that § 2L1.2 results in excessive sentences because it is not empirically based. See United S tates v . Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). We also have rejected the “internation a l t r e s p a s s ” a r gu ment that Estrada asserts. See United States v. Aguirre-Villa , 460 F .3d 681, 683 (5th Cir. 2006). Estrada argues, i n r eliance on K imbrough v. United St ates , 5 52 U.S. 85, 109-10 (2007), and for purposes of p r e s e r v i ng the issue for possible further

r e v i e w , that the presumption of reasonableness should not apply because t h e illegal reentry Guideline lacks an empiric a l basis. As Estrada concedes, his argument is foreclosed. Se e Duarte , 569 F .3d at 529-31; United States v. Mondragon-Santiago , 5 64 F .3d 357, 366-67 (5th Cir. 2009). Estra d a has not shown t hat his sentence does not account for a f a c t o r that should receive significant weight, gives significant w e ight to an irrelevant o r improper factor,
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or r epr e s e n t s a clear e rror of judgment in b alancing s entencing factors. See United States v . Cooks , 589 F.3d 173, 186 (5th Cir. 2009). E strada’s mere disagreement with the propriety of his sentence or with the weight given to § 3 553(a) factors does n o t s u f f ice to rebut the presumption o f reasonableness that attaches to a within-guidelines sentence. See United States v. Rui z , 6 2 1 F.3d 390, 3 98 (5th Cir. 2010). B ecause Estrada has not shown e rror, plain or otherwise, the judgment of the district court is AFFIRMED.

3 Case: 12-50318 Document: 00512163177 Page: 3 Date Filed: 03/04/2013