### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-50275 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. PABLO NEMATUTH, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1449-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Pablo Nematuth pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326 a n d w a s sentenced to 70 months of imprisonment and t h r e e years of supervised release. Nematuth argues that his sentence is unreasonable based on the particular facts of his case and as measured by the factors in 18 U.S.C. § 3553(a). He contends that the within-guideline sentence vastly overstates the seriousness of his illegal reentry offense, partly because of flaws in U.S.S.G. § 2L1.2 due to its lack of an empirical ba s i s a n d U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 8, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50275 Document: 00512087830 Page: 1 Date Filed: 12/18/2012No. 12-50275

double-counting of prior convictions. He asserts that the sentence is also greater than necess a ry t o deter future crime and protect the public because it fails to account f

o r h is relatively short prior imprisonment, his new understanding of the consequences he faces for illegal reentry, and his status as an illegal alien. He argues t h at t h e district court made a clear error in judgment in balancing § 3553(a)’s sentencing goals. He further argues, i n r e l i ance on Kimbrough v. United States , 552 U.S. 85, 109-10 (2007), that the presumption of reasonableness should not apply, but h e c o nc e de s that his argument is foreclosed by United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009), and he raises the argument to preserve it for possible review by the Supreme Court. Although Nema t u t h did not expressly object at sentencing to the substantive reasonableness of his sentence, he did assert specific arguments in favor of a v ariance; his arguments then are substantially identical to his assertions on appeal. We do not need to decide whether Nematuth’s arguments for a variance were sufficient to preserve the issues because Nematuth has not shown that the district court’s imposition of a within-guidelines sentence of 70 months was improper under either the deferential Gall standard of review or the plain-error review of Peltier

. See Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007). As he so c o n c e d e s, Nematuth’s argument that the presumption of reasonableness should not apply to his sentence because § 2L1.2 lacks empirical support has been rejected by this court. See Duarte , 569 F.3d at 529-31 (rejecting the notion that this court should examine the empirical basis behind each Gui delin e b ef

ore applying the presumption of reasonableness). Nematuth’s argument that his guidelines range was greater than necessary to meet § 3553(a)’s goals as a result of “double counting” is unavailing. The Guidelines provide for consideration of a prior conviction for both criminal history and the § 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have also rejected the argument that such double- c o unting necessarily renders a sentence
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unreasonable. See Duarte , 569 F.3d at 529-31. We have previously rejected the argument that illegal reentry i s m e rely a trespass offense that is treated too harshly under § 2L1.2. See United States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). Nematuth’s “status as a deportable alien, as an inherent element of his

c ri m e, has already been considered by the Commission in formulating the applicable guideline.” United States v. Garay , 235 F.3d 230, 233 (5th Cir. 2000). Regarding his contention that his offense was not on a par with the other serious offenses listed in § 2 L 1

. 2 (b)(1)(A)(ii), such as murder, rape, and arson, the presentence report notes that Nematuth came up behind the victim, grabbed her pocketbook and continued to pull, causing the victim to fall to the ground, and the district court n o ted the element of violence against the victim. Nematuth does not cite any auth o ri t y f rom this circuit requiring the district court to consider w h e th er the 70-month sentence was proportionate in light of his previous sentences. The dist ri c t court heard the arguments of Nematuth and his counsel for

a variance before imposing a sentence within the advisory guideline range. The district court considered Nematuth’s personal history and characte ri s tics and the other statutory sentenci n g factors in § 3553(a), in particular Nematuth’s extensive criminal history, prior to imposing a sentence within the Guidelines. N e m a tuth’s within-guidelines sentence is entitled to a presumption o f reasonableness. See Rita v. United States , 551 U.S. 338, 347 (2007). Nematuth has failed to show that the presumption should not apply. The district court did not abuse its discretion, much less plainly err, in imposing a sentence within the advisory guideline range. See Gall v. United States , 552 U.S. 38, 50-51 (2007). Accordingly, the judgment of the district court is AFFIRMED.

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