IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 sentenced to a 30-month term of

imprisonment following his guilty plea to illegal reentry of a deported alien. See

8 U.S.C. § 1326. Estrada argues that (1) his sentence, which is at the top of the

advisory guidelines range of 24 to 30 months of imprisonment, is unreasonable

because it is greater than necessary as measured by the factors identified in

18 U.S.C. § 3553(a); (2) the illegal reentry Guideline, U.S.S.G. § 2L1.2, lacks an

empirical basis and can result in a guidelines range that exceeds § 3553(a)’s

United States Court of Appeals

Fifth Circuit

F I L E D

March 4, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-50318

sentencing goals; (3) the Guideline gives heavy weight to prior convictions,

effectively double-counting the defendant’s criminal record; (4) the Guideline

overstated the seriousness of his offense, which was not evil and “was, 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, argues that the sentence is

substantively unreasonable. See Gall v. United States, 552 U.S. 38, 49-51 (2007). 

Review is limited to plain error because Estrada failed 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, 505 F.3d 389, 391-92 (5th

Cir. 2007). To show plain error, Estrada must show a forfeited error that is clear

or obvious and that affects his substantial rights. See Puckett, 556 U.S. at 135. 

If Estrada makes such a showing, this court has the discretion to 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 States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.

2009). We also have rejected the “internationaltrespass” argument that Estrada

asserts. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). 

Estrada argues, in reliance on Kimbrough v. United States, 552 U.S. 85,

109-10 (2007), and for purposes of preserving the issue for possible further

review, that the presumption of reasonableness should not apply because the

illegal reentry Guideline lacks an empirical basis. As Estrada concedes, his

argument is foreclosed. See Duarte, 569 F.3d at 529-31; United States v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). Estrada has not

shown that his sentence does not account for a factor that should receive

significant weight, gives significant weight to an irrelevant or improper factor,

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No. 12-50318

or represents a clear error of judgment in balancing sentencing factors. See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Estrada’s mere

disagreement with the propriety of his sentence or with the weight given to

§ 3553(a) factors does not suffice to rebut the presumption of reasonableness that

attaches to a within-guidelines sentence. See United States v. Ruiz, 621 F.3d

390, 398 (5th Cir. 2010). Because Estrada has not shown error, plain or

otherwise, the judgment of the district court is AFFIRMED.

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