IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 and was sentenced to 70 months of imprisonment

and three 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 basis and

United States Court of Appeals

Fifth Circuit

F I L E D

December 18, 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. 12-50275

double-counting of prior convictions. He asserts that the sentence is also greater

than necessary to deter future crime and protect the public because it fails to

account for his relatively short prior imprisonment, his new understanding of

the consequences he faces for illegal reentry, and his status as an illegal alien. 

He argues that the district court made a clear error in judgment in balancing

§ 3553(a)’s sentencing goals. He further argues, in reliance on Kimbrough v.

United States, 552 U.S. 85, 109-10 (2007), that the presumption of

reasonableness should not apply, but he concedes 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 Nematuth did not expressly object at sentencing to the

substantive reasonableness of his sentence, he did assert specific arguments in

favor of a variance; 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. 2007).

As he so concedes, 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 Guideline before 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-counting 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 is merely 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

crime, 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 § 2L1.2(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 noted the element of violence against the victim. Nematuth

does not cite any authority from this circuit requiring the district court to

consider whether the 70-month sentence was proportionate in light of his

previous sentences.

The district 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 characteristics and

the other statutory sentencing factors in § 3553(a), in particular Nematuth’s

extensive criminal history, prior to imposing a sentence within the Guidelines. 

Nematuth’s within-guidelines sentence is entitled to a presumption of

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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