### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 ap p e a l e d the sentence imposed by the district court following his guilty plea convicti o n o f one count of being found unlawfully present in the United States following removal. The district c ourt imposed a 70-month sentence of imprisonment, which was at the bottom of the Guideline range, and a three-year term of supervised release. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary4, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50278 Document: 00512101220 Page: 1 Date Filed: 01/04/2013No. 12-50278

Velez argues that his sentence is substantively unreasonable because it is greater than necessary to ac h ieve the sentencing goals of 18 U.S.C. § 3553(a). He does not suggest that the district court comm i tted 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 h i s illegal reentry offense, which he characterizes as nothing more than a n international trespass. Finally, Velez argues that the Gui deline s di d not account for his personal history and circumstances and that the di s t rict court did not give enough weight to these factors. The parties agree that plain error review a p p l i e s; however, they do not control th e s tandard of review. See United States v. Peltier , 505 F.3d 389, 391 & n.1 (5th Cir. 2007). We need no t d etermine 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). B e c ause 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 j u d g m e nt 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 § 2L 1 .2 enhancement. See U.S.S.G. § 2L1.2, comment. (n.6). We have reject e d 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 serious n e s s o f illegal reentry because it is simply an 2 Case: 12-50278 Document: 00512101220 Page: 2 Date Filed: 01/04/2013No. 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 c onsidered 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 jud g e 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 a s s e rtion 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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