IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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) appeals the sentence imposed following

his guilty plea conviction for being unlawfully present in the United States

following removal. Mendez argues that his sentence was substantively

unreasonable. He maintains that his within-guidelines range sentence should

not be considered presumptively reasonable because U.S.S.G. § 2L1.2 is not

empirically based, but he acknowledges that this argument is foreclosed. He

asserts that the guidelines sentence range was excessive because § 2L1.2 double

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2013

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.

 Case: 12-50698 Document: 00512287785 Page: 1 Date Filed: 06/26/2013
No. 12-50698

counted his prior convictions and because his offense was a mere trespass. He

contends that the sentence failed to account for his personal history and

characteristics because it did not reflect sufficient consideration for his father

abandoning him, his mother abusing him, and his growing up on the streets.

In the district court, Mendez did not object to the substantive

reasonableness of the sentence. Mendez argues that such an objection is not

required to preserve the substantive reasonableness of a sentence for review, but

he acknowledges that this argument is foreclosed by circuit precedent and raises

the issue to preserve it for further review. Accordingly, we review the

substantive reasonableness of the sentence for plain error only. See United

States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error

standard, Mendez must show a clear or obvious forfeited error that affected his

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If

Mendez makes such a showing, we have discretion to correct the error but

should do so only if the error seriously affects the fairness, integrity, or public

reputation of the proceedings. See id.

“[A] sentence within a properly calculated Guideline range is

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (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 this court “might reasonably have

concluded that a different sentence was appropriate 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 factors. The district

court balanced these factors, and it determined that a sentence near the bottom

of the guidelines range was appropriate. We conclude there is no reason to

disturb the presumption of reasonableness in this case. See United States v.

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Considering the totality

2

 Case: 12-50698 Document: 00512287785 Page: 2 Date Filed: 06/26/2013
No. 12-50698

of the circumstances, as we must, see Gall, 552 U.S. at 51, 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.

3

 Case: 12-50698 Document: 00512287785 Page: 3 Date Filed: 06/26/2013