### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50974 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. HUMBERTO MARTIN S I LVA FIGUEROA, also known as Yubani Heriberto Acevedo R amos, also k nown as Martin Silva, also known as Martin SilvaFigueroa, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-1078-1

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges. PER CURIAM: * Humberto M artin S i lva Figueroa (Silva) a ppeals the 41-month within-guidelines sentences he r eceived following his guilty plea to i l l e gal reentry and falsely personating another in immigration matters. Silva argues that his sentences are greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He specifically contends that the guidelines sentencing range U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50974 Document: 00512380507 Page: 1 Date Filed: 09/20/2013No. 12-50974

was to o s evere because the district court f ailed to consider that his reentry offense was at bottom a mere trespass and did not c onsider his benign motive for returning. Additionally, Silva contends that his sentences are not entitled to a presumption of correctness because the i l l egal reentry Guideline, U.S.S.G. § 2L1.2, is not empirically b ased, given that i t double-counts a defendant’s criminal history. We review s entences for substantive reasonab l e n e s s , in light of the § 3553(a) factors, under an abuse of discretion s tandard. Gall v. United States , 552 U.S. 38, 49-51 (2007). As he concedes, Silva’s empiri c a l d a t a a r gument is foreclosed by this court’s precedent. See United States v . Duarte , 569 F.3d 528, 529-31 (5th C ir. 2009); United States v. Mondragon-Santiago , 564 F.3d 357, 360 (5th C ir. 2009). We have rejected the argument that a guidelines sentence under § 2L1.2 is unreasonable because illegal reentry is a mere trespass offense. See United S tates v. A

guirre-Villa , 460 F.3d 6 81, 683 (5th Cir. 2 006). Furthermore, Silva’s s e ntences, which a re at the bottom of the applicable guidelines range, are presumed reasonable. See U nited States v . Newson , 515 F.3d 374, 379 ( 5th Cir. 2008). His general disagreement with the propriety o f h is s entences and the district court’s weighing of the § 3 5 5 3 ( a) f actors i s i n sufficient to rebut the presumption of re a sonableness that attaches to a within-guidelines sentence. See United States v. Cooks , 5 8 9 F

. 3 d 1 7 3 , 186 (5th Cir. 2 009); U nited States v. Gomez-Herrera , 523 F.3d at 554, 565-66 (5th Cir. 2008). Silva has not d emonstrated that the district c ourt abused its discretion by sentencing him to within-guidelines sentences of 41 m onths in prison. See Gall , 552 U.S. at 51. Consequently, the judgment of the district court is AFFIRMED.

2 Case: 12-50974 Document: 00512380507 Page: 2 Date Filed: 09/20/2013