IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50379

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE LUIS BARRERA-SANCHEZ, also known as Jose Luis Sanchez-Barrera,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-1049-1

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges. 

PER CURIAM:*

Jose Luis Barrera-Sanchez challenges his 42-month, within-Sentencing 

Guidelines sentence, imposed following his guilty-plea conviction for illegal 

reentry, in violation of 8 U.S.C. § 1326. He contends the sentence is 

substantively unreasonable because it is greater than necessary to satisfy the 

sentencing goals in 18 U.S.C. § 3553(a). He asserts the advisory Guidelinessentencing range is too high because Guideline § 2L1.2 (unlawfully entering or 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 9, 2014

Lyle W. Cayce

Clerk

 

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No. 14-50379

remaining in the United States) is not empirically based, and effectively 

double-counts his criminal record. He also contends the Guidelines-sentencing 

range overstates the seriousness of his nonviolent-reentry offense (only “an 

international trespass”) and fails to account for his personal history and 

characteristics.

Although post-Booker, the Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard, the district court must still properly 

calculate the advisory Guidelines-sentencing range for use in deciding on the 

sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that 

respect, for issues preserved in district court, its application of the Guidelines 

is reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Barrera does not claim 

procedural error. He claims only that his sentence is substantively 

unreasonable. As stated, that claim is reviewed for abuse of discretion. In 

doing so, a rebuttable presumption of reasonableness is applied to a withinGuidelines sentence. United States v. Mondragon-Santiago, 564 F.3d 357, 367

(5th Cir. 2009) (citations omitted).

Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), and 

to preserve the issue for possible further review, Barrera claims the 

presumption of reasonableness should not apply because Guideline § 2L1.2

lacks an empirical basis. As Barrera concedes, however, this claim is 

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

see also Mondragon-Santiago, 564 F.3d at 366-67.

Our court has consistently rejected “double-counting” claims and 

assertions that Guideline § 2L1.2 results in excessive sentences because it is 

not empirically based. E.g., Duarte, 569 F.3d at 529-31. We also have rejected 

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Barrera’s only “an international trespass” contention. E.g., United States v. 

Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).

The district court considered Barrera’s request for a lower sentence. 

Barrera, furthermore, has not shown that his sentence: fails to account for a

§ 3553(a) sentencing factor that should receive significant weight, gives 

significant weight to an irrelevant or improper factor, or represents a clear 

error in judgment in balancing sentencing factors. E.g., United States v. Cooks, 

589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). Mere disagreement with 

the propriety of his sentence or with the weight given to § 3553(a) factors does 

not suffice to rebut the presumption of reasonableness that attaches to a 

within-Guidelines sentence. E.g., United States v. Ruiz, 621 F.3d 390, 398 (5th 

Cir. 2010) (citations omitted). 

AFFIRMED.

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