IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50932

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

FAUSTINO DOMINGUEZ-AMADOR, also known as Guillermo Rufino 

Escamilla, also known as Faustino Martinez, also known as Augustine 

Martinez, also known as Faustino Dominguez,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:13-CR-299-1

Before JONES, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:*

Faustino Dominguez-Amador challenges the 46-month sentence 

imposed following his guilty-plea conviction for illegal reentry following 

removal, in violation of 8 U.S.C. § 1326. Dominguez contends his withinGuidelines sentence is substantively unreasonable because it is greater than 

necessary to meet the goals of 18 U.S.C. § 3553(a). Along that line, he 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 16, 2014

Lyle W. Cayce

Clerk

 

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No. 13-50932

maintains: because Sentencing Guideline § 2L1.2 (for illegal reentry) 

effectively double-counted his prior convictions, the advisory-Guidelinessentencing range overstated the seriousness of his non-violent offense, which 

he claims is merely an international trespass; and the district court failed to 

account for his personal history and characteristics, including his motive for 

returning to the United States (working to support his children).

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the advisory Guidelines-sentencing range for use in 

deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 

(2007). In that respect, for issues preserved in district court, its application of 

the Guidelines is reviewed de novo; its factual findings, only for clear error. 

E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

Dominguez does not claim procedural error, but contends only that his

sentence is substantively unreasonable. On the other hand, “[a] discretionary 

sentence imposed within a properly calculated [G]uidelines [sentencing] range 

is presumptively reasonable”. United States v. Campos-Maldonado, 531 F.3d 

337, 338 (5th Cir. 2008). Dominguez contends the within-Guidelines sentence 

should not be afforded that presumption because Guideline § 2L1.2 lacks an 

empirical basis. He concedes our precedent, see, e.g., United States v. 

Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009), forecloses this 

contention but raises it for possible further review. 

At the sentencing hearing, the district court considered Dominguez’ 

request for a below-Guidelines-range sentence and ultimately concluded a 

sentence at the bottom of the applicable, advisory-sentencing range (46–57 

months) was appropriate, based upon Dominguez’ criminal history, nine prior

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No. 13-50932

removals from the United States, and use of numerous aliases and birth dates. 

Further, our court has rejected the oft-repeated claims that double-counting 

necessarily renders a sentence unreasonable and that the Guidelines overstate 

the seriousness of illegal reentry. See United States v. Duarte, 569 F.3d 528, 

529–30 (5th Cir. 2009). 

Dominguez, therefore, has failed to rebut the above-referenced 

presumption of reasonableness applied to his 46-month, within-Guidelines 

sentence. See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th 

Cir. 2008).

AFFIRMED.

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 Case: 13-50932 Document: 00512665215 Page: 3 Date Filed: 06/16/2014