### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 17, 2013 Ly l e W . Cay ce Clerk Case: 12-51217 Document: 00512411381 Page: 1 Date Filed: 10/17/2013No. 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 t op of the guidelines imprisonment range t o a 4 1 -month term of imprisonment and t o a t hree-year
p e r i o d of supervised release. Aviles’s supervised release in a prior cas e w a s revoked and he was sentenced to a 21-month t e rm o f imprisonment, 10 months of which were order e d t o b e served concurrently and 1 1 m onths of which were ordered to be served consecutively. Thus, Aviles was sentenced to a total term of imprisonment of 52 m onths and to a t hree-year period of supervised release. Aviles gave t imely 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 t han necessary to satisfy the statutory sentencing factors. After U n ited States v. Booker , 5 43 U.S. 220 ( 2005), s entences a r e reviewed for procedural error and substantive reasonableness under an abuse of di s c r e t i o n s t a n d a r d. United States v. Johnson , 619 F.3d 469, 471-72 (5th Cir. 2010) (citing Gall v. U nited States , 5 52 U.S. 38, 50-51 (2007)). This court applies a presumption of reasonab l e n e s s t o p roperly calculated within-guidelines sentences. United States v. Rashad , 687 F .3d 637, 644 (5th Cir. 2012). A viles asserts that the Guideline governing his illegal re-entry case doub l e counted his p r i o r c r iminal c onvictions and that the presumption of reasonableness should not apply because the Guideline is n ot empirically based; he contends that application of the G uideline s o m etimes results in sentences that are too high to f

ulfill the statutory sentencing goals. These contentions are

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 12-51217 Document: 00512411381 Page: 2 Date Filed: 10/17/2013No. 12-51217 c/w No. 12-51231 foreclosed. See United Sta t e s v . Duarte , 569 F.3d 5 28, 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. H e c o n t e n d s that, at bottom, his offense w as merely an international trespass. We have rejected similar arguments p reviously. See U nited States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). Lastly, Aviles contends that t he 52-month sentence f ailed t o r eflect his personal history and characteristics. In imposing the sentence, the d istrict court

no t e d t hat Aviles had an extensive criminal history. Although m any of his offenses were n ot s c ored, t he court observed, Av i l e s h a d an unusually high criminal history score. The district court’s c o mments r eflect 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 m ade a clear error of judgment in balancing the s tatutory sentencing factors. See Rashad , 687 F.3d 644. Nor has he shown that the sentence i m p o s e d u pon revocation of his supervised release was p l a inly unreasonable. See United States v. M i ller , 634 F.3d 841, 843 (5th Cir. 2011). The judgment of conviction and the order revoking Aviles’s supervised release are AFFIRMED.

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