### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 50149 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
MARLON ALEXANDER BONILLA , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:13

- CR

- 1120

Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM: * Marlon Alexander Bonilla appeals the 60

- month within guidelines sentence imposed following his guilty plea conviction to illegal reentry , in violation of 8 U.S.C. § 1326. He contends that the se ntence is substantively unreasonable because it was greater than necessary to satisfy the sentencing goals in 18 U.S.C. § 3553(a). He argues that the guideline range was too high to fulfill § 3553(a)’s goals because U.S.S.G. § 2L1.2 is not empirically bas ed and

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 24, 2014 Lyle W. Cayce Clerk Case: 14-50149 Document: 00512846957 Page: 1 Date Filed: 11/24/2014No. 14

- 50149
effectively double counts a defendant’s criminal record. He also contends that the range overstated the seriousness of his nonviolent reentry offense and failed to account for his personal history and characteristics

. We review the substantive reas onableness of the sentence for an abuse of discretion. United States v. Delgado

- Martinez , 564 F.3d 750, 75 1

- 5 2 (5th Cir. 2009). We apply a rebuttable presumption of reasonableness to a within guidelines sentence. United States v. Mondragon

- Santiago , 564 F.3d 357, 360 (5th Cir. 2009). 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, Bonilla argues that the presumption of reasonableness should not app ly because the illegal reentry g uideline lacks an empirical basis. As Bonilla concedes, his argument is foreclosed. See United States v. Duarte , 569 F.3d 528, 529

- 31 (5th Cir. 2009); Mondragon

- Santiago , 564 F.3d at 366

- 67. We have consistently rejected “double counting” arguments and arguments that U.S.S.G. § 2L1.2 results in excessive sentences because it is not empirically based. See Duarte , 569 F.3d at 529

- 31. We also have rejected the “trespass” argument that Bonilla a sserts. See United States v. Aguirre

Villa , 460 F.3d 681, 683 (5th Cir. 2006). The district court considered Bonilla’s arguments for a lower sentence. Bonilla has not shown that his sentence does not account for a sentencing factor that should receive s ignificant weight, gives significant weight to an irrelevant or improper factor, or represents a clear error of judgment in balancing sentencing factors. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). 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 reasonabl eness that attaches to a within guidelines sentence. See United

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- 50149

States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 2010). The judgment of the dis trict court is AFFIRMED.

3 Case: 14-50149 Document: 00512846957 Page: 3 Date Filed: 11/24/2014