IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50107

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER RODRIGUEZ-LOPEZ, also known as Juan Chairez-Lopez,

Defendant-Appellant

___________________________________

Cons. w/No. 16-50259

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER RODRIGUEZ-LOPEZ, also known as Juan Charez-Gonzalez, also 

known as Juan Charez Gonzalez, also known as Javier Rodriguez Lopez,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 3:15-CR-1635-1

USDC No. 3:10-CR-1980-1

United States Court of Appeals

Fifth Circuit

FILED

December 6, 2016

Lyle W. Cayce

Clerk

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No. 16-50107

Cons. w/No. 16-50259

2

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Javier Rodriguez-Lopez appeals the 24-month sentence he received 

following his guilty plea conviction for illegal reentry, as well as the consecutive 

21-month sentence he received following the revocation of his supervised 

release. He asserts that his combined sentence of 45 months is substantively 

unreasonable, as it is greater than necessary to achieve the goals of 18 U.S.C. 

§ 3553(a). Rodriguez-Lopez argues that this is so because the illegal-reentry 

Guideline—U.S.S.G. § 2L1.2—lacks an empirical basis, because it effectively 

double counts his criminal history, because illegal reentry is a nonviolent 

offense, and because the district court failed to adequately consider his 

personal history and characteristics, including his benign reasons for reentry.

When, as here, the district court imposes a sentence within a properly 

calculated guidelines range, the sentence is presumptively reasonable. United 

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption, 

Rodriguez-Lopez must show “that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing sentencing factors.” Id.

As he acknowledges, Rodriguez-Lopez’s argument that the presumption 

of reasonableness should not apply to his illegal-reentry sentence because 

U.S.S.G. § 2L1.2 lacks an empirical basis is foreclosed, and he raises it only to 

preserve it for further review. See United States v. Mondragon-Santiago, 564 

F.3d 357, 366-67 (5th Cir. 2009). We likewise have previously rejected the 

 

* 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.

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No. 16-50107

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contention that a within-guidelines sentence is unreasonable because § 2L1.2 

lacks an empirical basis and effectively double counts prior convictions. See 

United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); MondragonSantiago, 564 F.3d at 366-67 & n.7. Also, we have not been persuaded by the 

claim that the Sentencing Guidelines do not take into account the nonviolent 

nature of an illegal-reentry offense. See United States v. Juarez-Duarte, 513 

F.3d 204, 212 (5th Cir. 2008). Rodriguez-Lopez’s alleged benign motive for 

returning to this country is insufficient to rebut the presumption of 

reasonableness attached to his within-guidelines sentence. See United States 

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

Insofar as Rodriguez-Lopez challenges the fact that his revocation 

sentence was ordered to be served consecutively to his non-revocation sentence, 

his challenge is unavailing. Because his 21-month revocation sentence falls 

within the applicable advisory policy range and is consistent with the mandate 

of U.S.S.G § 7B1.3(f), p.s., it is entitled to a presumption of reasonableness. 

See United States v. Lopez-Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008). 

Rodriguez-Lopez has made no effort to rebut the presumption of 

reasonableness afforded his revocation sentence. See Cooks, 589 F.3d at 186.

The judgment of the district court is AFFIRMED.

 Case: 16-50107 Document: 00513786512 Page: 3 Date Filed: 12/06/2016