IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50897

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO ARMANDO PENA-VAQUERA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:12-CR-1113-1

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:

*

Sergio Armando Pena-Vaquera (Pena) appeals the sentence imposed

following his guilty plea conviction for being unlawfully present in the United

States following removal. Pena argues that his sentence is substantively

unreasonable because it is greater than necessary to meetthe goals of 18 U.S.C.

§ 3553(a). He maintains that his within-guidelines range sentence should not

be considered presumptively reasonable because the Guideline under which he

United States Court of Appeals

Fifth Circuit

F I L E D

July 31, 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. 12-50897

was sentenced, U.S.S.G. § 2L1.2, is not empirically based, but he acknowledges

that this argument is foreclosed. He contends that the lack of an empirical

basis for § 2L1.2 makes advisory guidelines ranges under § 2L1.2 excessive

even in ?mine-run” cases. He asserts that his guidelines range was greater

than necessary because § 2L1.2 double counted his prior convictions and

because his offense was a mere trespass. He contends that the sentence failed

to account for his personal history and characteristics because it did not reflect

sufficient consideration for his returning to the United States because his

father was ill, his cultural assimilation, and his wife’s decision to relocate with

him to Mexico after his sentence is served.

“[A] sentence within a properly calculated Guideline range is

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006). As Pena concedes, his argument that his within-guidelines range

sentence should not be considered presumptively reasonable because § 2L1.2

is not empirically based is foreclosed. See United States v. Duarte, 569 F.3d

528, 529-31 (5th Cir. 2009).

The district court considered and rejected Pena’s arguments for a below

guidelines range sentence. With explicit reference to the § 3553(a) factors of

promoting the respect of law, providing for the safety of the community, and

deterrence, it determined that a sentence within the guidelines range was

appropriate. The international trespass and the double counting of prior

convictions arguments that Pena raises have both been previously raised in

this court without success. See United States v. Aguirre-Villa, 460 F.3d 681,

683 (5th Cir. 2006); Duarte, 569 F.3d at 529-31. As Pena was sentenced within

the guidelines range, the sentence is entitled to a presumption of

reasonableness, and Pena has not shown sufficient reason for us to disturb that

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No. 12-50897

presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th

Cir. 2008).

AFFIRMED.

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 Case: 12-50897 Document: 00512326791 Page: 3 Date Filed: 07/31/2013