IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51217

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO AVILES-LOPEZ,

Defendant-Appellant

Cons. w/ No. 12-51231

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO LOPEZ AVILES,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-635-1

USDC No. 2:12-CR-772-1

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2013

Lyle W. Cayce

Clerk

 Case: 12-51217 Document: 00512411381 Page: 1 Date Filed: 10/17/2013
No. 12-51217

c/w No. 12-51231

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Francisco Aviles-Lopez (Aviles) pleaded guilty of re-entering the United

States illegally after removal, and he was sentenced at the top of the guidelines

imprisonment range to a 41-month term of imprisonment and to a three-year

period of supervised release. Aviles’s supervised release in a prior case was

revoked and he was sentenced to a 21-month term of imprisonment, 10 months

of which were ordered to be served concurrently and 11 months of which were

ordered to be served consecutively. Thus, Aviles was sentenced to a total term

of imprisonment of 52 months and to a three-year period of supervised release. 

Aviles gave timely notice of his appeals from the judgment of conviction and the

order of revocation. The two appeals have been consolidated. 

Aviles contends that the sentence imposed was greater than necessary to

satisfy the statutory sentencing factors. After United States v. Booker, 543 U.S.

220 (2005), sentences are reviewed for procedural error and substantive

reasonableness under an abuse of discretion standard. United States v. Johnson,

619 F.3d 469, 471-72 (5th Cir. 2010) (citing Gall v. United States, 552 U.S. 38,

50-51 (2007)). This court applies a presumption of reasonableness to properly

calculated within-guidelines sentences. United States v. Rashad, 687 F.3d 637,

644 (5th Cir. 2012). 

Aviles asserts that the Guideline governing his illegal re-entry case double

counted his prior criminal convictions and that the presumption of

reasonableness should not apply because the Guideline is not empirically based;

he contends that application of the Guideline sometimes results in sentences

that are too high to fulfill the statutory sentencing goals. These contentions are

* 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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c/w No. 12-51231

foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);

United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). 

Next, Aviles complains that the 52-month sentence overstated the

seriousness of his unlawful re-entry case. He contends that, at bottom, his

offense was merely an international trespass. We have rejected similar

arguments previously. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th

Cir. 2006). 

Lastly, Aviles contends that the 52-month sentence failed to reflect his

personal history and characteristics. In imposing the sentence, the district court

noted that Aviles had an extensive criminal history. Although many of his

offenses were not scored, the court observed, Aviles had an unusually high

criminal history score. The district court’s comments reflect that it was aware

of and understood the circumstances that caused Aviles to return to the United

States. Aviles has not shown that, in imposing the sentence, the district court

failed to account for factors that should receive significant weight, that it gave

significant weight to irrelevant or improper factors, or that it made a clear error

of judgment in balancing the statutory sentencing factors. See Rashad, 687 F.3d

644. Nor has he shown that the sentence imposed upon revocation of his

supervised release was plainly unreasonable. See United States v. Miller, 634

F.3d 841, 843 (5th Cir. 2011). The judgment of conviction and the order revoking

Aviles’s supervised release are AFFIRMED. 

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 Case: 12-51217 Document: 00512411381 Page: 3 Date Filed: 10/17/2013