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 sentence 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 based and 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 24, 2014

Lyle W. Cayce

Clerk

 

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No. 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 reasonableness of the sentence for an abuse 

of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 751-52 (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 apply because the

illegal reentry guideline 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 asserts. See United States v. AguirreVilla, 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 significant 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 reasonableness that attaches to a within guidelines sentence. See United 

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No. 14-50149

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The judgment of the district 

court is AFFIRMED.

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