### 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 cont ends 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 Guidelines

sentencing range is too high because Guideline § 2L1.2 (unlawfully entering or

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 9, 2014 Lyle W. Cayce Clerk Case: 14-50379 Document: 00512863284 Page: 1 Date Filed: 12/09/2014No. 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 overstate s the seriousness of his nonviolent

- reentry offense (only “an international trespass”) and fail s 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 finding s, 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

unr easonable. As stated , that claim is reviewed for abuse of discretion . In doing so, a rebuttable presumption of reasonableness is applied to a within

G uidelines sentence

. United States v. Mondragon

- Santiago , 564 F.3d 357, 36 7 (5th Cir. 2009) (citations o mitted ). 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 app ly 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 Gu ideline § 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

2 Case: 14-50379 Document: 00512863284 Page: 2 Date Filed: 12/09/2014No. 14

- 50379
Barrera’s only “an international trespass” contention

. E.g., United States v. Juarez

- Duarte , 513 F.3d 204, 212 (5 th 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 wei ght 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 reasonabl eness that attaches to a within

- G uidelines sentence. E.g., United States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 2010) (citations omitted)

. AFFIRMED.

3 Case: 14-50379 Document: 00512863284 Page: 3 Date Filed: 12/09/2014