### 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 Ruf ino 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

- 29 9

- 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 within

Guidelines sentence is substantively unreasonable because it is greater than necessary to meet the goals of 18 U.S.C. § 3553(a). Along that line, h e

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 16, 2014 Lyle W. Cayce Clerk Case: 13-50932 Document: 00512665215 Page: 1 Date Filed: 06/16/2014No. 13

- 50932
maintains : because Sent encing Guideline § 2L1.2 (for ille gal reentry) effectively double

- count ed his prior convictions , the advisory

- Guidelines

sentencing range overstated the seriousness of his non

- violent offense, which he claims is merely an international trespass ; and the di strict 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 preser ved 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. Uni ted 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 presumpti vely reasonable”

. United States v. Campos

- Maldonado , 531 F.3d 337, 338 (5th Cir. 2008). Dominguez contends the within

- Guidelines sen tence should not be afforded that presumption because Guideline § 2L1.2 lacks an empirical basis. He concedes our precede nt , 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, t he district court considered Dominguez ’ request for a below

- Guid elines

- 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

2 Case: 13-50932 Document: 00512665215 Page: 2 Date Filed: 06/16/2014No. 13

- 50932 removals from the United States, and use of numerous ali ases and birth dates

. Further, o ur 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.

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