IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50853

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAFAEL GUTIERREZ-DIAZ, also known as Rafael Gutierrez, also known as

Luis Angel Ortiz-Morales,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3-11-CR-1272-1

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Rafael Gutierrez-Diaz has appealed his sentence for illegal reentry

following deportation (Count One) and false personation when applying for

admission to the United States (Count Two). The district court imposed the

lowest within-guidelines sentence, a term of 57 months of imprisonment and

three years of supervised release. Gutierrez-Diaz argues that his sentence is

substantively unreasonable because it is greater than necessary to achieve the

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 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. 11-50853

sentencing goals of 18 U.S.C. § 3553(a). He does not suggest that the district

court committed a procedural error in calculating the applicable guideline range,

but he argues that the illegal reentry guideline, U.S.S.G. § 2L1.2, is flawed

because it double counts the defendant’s criminal history. He contends that the

Guidelines overstate the seriousness of his illegal reentry offense, which he

characterizes as nothing more than an international trespass. Finally,

Gutierrez-Diaz argues that the Guidelines did not account for his personal

history and circumstances and that the district court did not give enough weight

to these factors. 

Because Gutierrez-Diaz did not object at sentencing or argue in the district

court that his sentence was unreasonable, we review his arguments for plain

error. See Puckett v. United States, 556 U.S. 129, 134-35 (2009); United States

v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 

The Sentencing Guidelines provide for consideration of a prior conviction

for both criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2,

cmt. n.6. We have rejected the argument that such double counting necessarily

renders a sentence unreasonable. See United States v. Duarte, 569 F.3d 528,

529-31 (5th Cir. 2009). We have also rejected the argument that the Guidelines

overstate the seriousness of illegal reentry because it is simply an international

trespass offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.

2006).

The district court considered Gutierrez-Diaz’s sentencing arguments and

his reasons for returning to the United States before determining that a withinGuideline sentence was appropriate. The court imposed the lowest sentence in

the advisory guideline range. Gutierrez-Diaz has not shown that the district

court considered any irrelevant or improper factors, that it made an error in

judgment in weighing the § 3553(a) factors, or that it did not account for a factor

that should receive significant weight. See United States v. Cooks, 589 F.3d 173,

186 (5th Cir. 2009). The district court did not abuse its discretion, much less

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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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