### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50853 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RAFAEL GUTIERREZ-D IAZ , a lso 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 distr i c t court imposed the lowest within-guidelines sentence, a term of 57 months of imprisonment and t hree years of supervised release. Gutierrez-Diaz argues that his sente n c e i s substantively unreasonable because it is greater than necessary to achieve the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 11 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50853 Document: 00511883347 Page: 1 Date Filed: 06/11/2012No. 11-50853

sentencing goals of 18 U.S.C. § 3553(a). He does not s u g g est that the district court committed a procedural error in calculating the applic ab l e gui de line range, but he a r gu e s t h a t 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 o v e r state the seriousness of his illegal reentry offense, which he

c h aracterizes as nothing more than an international trespass. Finall y , Gutierrez-Diaz argues that t h e G u idelines did not account for his personal history and circumstances and that the district court did not give enough weight to these factors. Because Gutierr e z - D i a z di d n o t object at sentencing or argue in the district court that his senten c e was unreasonable, we review his arguments for plain

error. See Puckett v. United States , 556 U.S. 129, 134-35 (200 9); United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007). The Sentencing Guidelines provide for consideration of a prior conviction for both criminal histor y 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 render s a s e n t e nce 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. Gutier r ez-Diaz has not shown that the district

c o u r t c onsidered 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 di s t r i c t c o u r t 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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