IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51120

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

MARIO ALBERTO IBARRA-VERA,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-549-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Mario Alberto Ibarra-Vera (Ibarra) was sentenced to a 46-month term of

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

8 U.S.C. § 1326. Ibarra argues that his sentence, which is in the middle of his

advisory guidelines range of 41 to 51 months of imprisonment, is unreasonable

because it is greater than necessary as measured by the factors identified in 18

U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

August 7, 2012

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. 11-51120

Ibarra does not contend that the district court committed any procedural

error in imposing his sentence. Thus, our review is confined to whether the

sentence is substantively unreasonable under an abuse-of-discretion standard. 

See Gall v. United States, 552 U.S. 38, 49-51 (2007). We have consistently

rejected Ibarra’s “double counting” argument and his argument that U.S.S.G.

§ 2L1.2 results in an excessive sentence because it is not empirically based. See

United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). We also have

rejected the “international trespass” argument that Ibarra asserts. See United

States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (per curiam).

As to Ibarra’s argument that the Sentencing Guidelines failed to account

for the circumstances of his offense or his history, at sentencing, the district

court considered the advisory guidelines range, Ibarra’s objection to the

presentence report, Ibarra’s arguments in support of a variance from the

advisory guidelines range, Ibarra’s statement in allocution, the Government’s

request for a sentence at the bottom of the guidelines range, and the factors

identified in § 3553, determining that a 46-month sentence was appropriate. 

The record reflects that the district court made an individualized determination

at sentencing based on the facts presented and in light of the § 3553(a) factors.

See Gall, 552 U.S. at 50.

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

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

2006); see Rita v. United States, 551 U.S. 338, 347 (2007). Ibarra argues, for the

purpose of preservation of the issue for possible further review by the Supreme

Court, that a sentence imposed under § 2L1.2 should not be accorded that

presumption “because, without empirical basis, the guideline double-counts

criminal history.” As he concedes, however, his argument is foreclosed by United

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). 

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No. 11-51120

Ibarra has not shown that the district court failed to give proper weight

to his arguments or to any particular § 3553(a) factor. See United States v.

Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He has thus failed to rebut the

presumption of reasonableness that is accorded his within-guidelines sentence. 

See id.; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). 

Accordingly, the district court’s judgment is AFFIRMED.

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Case: 11-51120 Document: 00511947886 Page: 3 Date Filed: 08/07/2012