IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50278

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO VELEZ-RIVAS, also known as Andrez Gomez, also known as Sergio

Rivas,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-3034-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:*

Sergio Velez-Rivas (Velez) has appealed the sentence imposed by the

district court following his guilty plea conviction of one count of being found

unlawfully present in the United States following removal. The district court

imposed a 70-month sentence of imprisonment, which was at the bottom of the

Guideline range, and a three-year term of supervised release. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 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.

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No. 12-50278

Velez argues that his sentence is substantively unreasonable because it is

greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). 

He does not suggest that the district court committed a procedural error in

calculating the applicable guideline range, but he argues that 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 overstate the seriousness of

his illegal reentry offense, which he characterizes as nothing more than an

international trespass. Finally, Velez argues that the Guidelines did not account

for his personal history and circumstances and that the district court did not

give enough weight to these factors.

The parties agree that plain error review applies; however, they do not

control the standard of review. See United States v. Peltier, 505 F.3d 389, 391

& n.1 (5th Cir. 2007). We need not determine whether plain error review is

applicable because, as discussed below, Velez’s arguments fail even under the

abuse-of-discretion standard. See United States v. Rodriguez, 523 F.3d 519, 525

(5th Cir. 2008).

Because the district court sentenced Velez within a properly calculated

Guideline range, its sentence is presumptively reasonable. See United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The presumption of reasonableness

is rebutted only “upon a showing 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.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

The Sentencing Guidelines provide for consideration of a prior conviction

for both criminal history and the § 2L1.2 enhancement. See U.S.S.G. § 2L1.2,

comment. (n.6). We have rejected the argument that such double counting

necessarily renders a sentence 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

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No. 12-50278

international trespass offense. See United States v. Aguirre-Villa, 460 F.3d 681,

683 (5th Cir. 2006). Further, Velez’s benign motive for illegally returning to this

country fails to establish that the within-guidelines sentence chosen by the

district court is unreasonable. See United States v. Gomez-Herrera, 523 F.3d

554, 565-66 (5th Cir. 2008).

The district court considered Velez’s sentencing arguments and his

reasons for returning to the United States before denying Velez’s request for a

downward variance and imposing a sentence at the bottom of the advisory

guideline range. “[T]he sentencing judge is in a superior position to find facts

and judge their import under § 3553(a) with respect to a particular defendant.” 

United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Given

the deference owed to the district court’s sentencing determination, see Gall v.

United States, 552 U.S. 38, 51-52 (2007), Velez’s assertion that his sentence is

unreasonable in light of the § 3553(a) factors fails to rebut the presumption that

the sentence is reasonable. See Cooks, 589 F.3d at 186.

AFFIRMED.

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