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

No. 12-50698 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RICARDO ADONAY MENDEZ, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1730-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Ricardo Adonay Mendez (Mendez) a p p eals the sentence i mposed following his guilty plea conviction for being un lawfully present in the U nited States follo w i ng removal. Mendez argues that his sentence was substantively unreasonable. He maintains that his within-guidelines range s e ntence should not be consi d e r ed presumptively reasonable because U.S.S.G. § 2L1.2 is not empirically based, but he acknowledges that t his argu m e n t is foreclosed. He asserts that the guidelines sentence range was excessive because § 2L1.2 double 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 June 26, 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

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counted his prior convictions and because his offense was a mere trespass. He contends that the sentence failed to a cc o u n t f o r his p e rsonal history and characteristics b ecause it did not reflect sufficient consideration for h is father abandoning him, his mother abusing him, and his growing up on the streets. In the district c ourt, Mendez d i d not o bject to the substantive

r e a s o n ab l eness of the sentence. Mendez argues t h at such an objection is n ot required to preserve the s ubstantive reasonableness of a s e ntence for review, but he acknowledges that this argument is foreclosed by circuit precedent and raises the issue to preserve i t for further review. Ac c o rdingly, we review the substantive rea sonableness of the sentence for plain error only. See United States v. Peltier , 5 0 5 F

. 3 d 389, 391-92 (5th Cir. 2007). U nder the plain error standard, Mendez must show a clear or obvious forfeited error that affected his substantial rights. See Puckett v. United Stat e s , 5 5 6 U.S. 129, 1 35 (2009). If Mendez ma k e s such a s howing, we have d iscretion t o correct the error but should do so only if the error seriously a ffects the f airness, i ntegrity, or public reputation of the proceedings. See id

. “[A] sentence w ithin a properly calculated Guideline r a nge is presumptively reasonable.” U nited S tates v. Alonzo , 435 F.3d 551, 5 54 (5th Cir. 2006). As Mendez concedes, his argument that his within-guidelines range sentence should not be considered presumptively reasonable because § 2L1.2 is not empirically based is foreclosed. See United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). The fact that t h is court “ m i g h t r easonably have concluded that a different sentence was appro p r i a t e is insufficient to justify reversal of the district court.” Gall v. United States , 552 U.S. 38, 51 (2007). The district court had before it both mitigating and aggravating f actors. The district court balanced these factors, and it determined that a sentence n e ar the bottom of the guidelines range was appropriate. We conclud e t h e re i s n o reason to disturb the presumption of reasonableness in this c ase. See United States v. Gomez-Herrera , 523 F.3d 5 54, 565-66 (5th Cir. 2008). Considering the totality
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of the c ircumstances, a s we must, see Gall , 552 U.S. a t 5 1, Mendez has not shown that the sentence was plainly erroneous. See Rita v. United States , 551 U.S. 338, 359-60 (2007); Peltier , 505 F.3d at 392-94. AFFIRMED.

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