IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50016

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS ANTONIO MORENO-HERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-1609-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Luis Antonio Moreno-Hernandez appeals from the sentence imposed

following his guilty-plea conviction for illegal reentry. The district court

sentenced him to a within-guidelines term of 46 months of imprisonment and to

three years of supervised release. Moreno challenges the substantive

reasonableness of the sentence, arguing that his sentence is unreasonable

because it is greater than necessary to achieve the sentencing goals of 18 U.S.C.

§ 3553(a). He contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2012

Lyle W. Cayce

Clerk

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.

Case: 12-50016 Document: 00512029264 Page: 1 Date Filed: 10/23/2012
No. 12-50016

not empirically based and resulted in the triple counting of his criminal history.

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

that the presumption of reasonableness should not apply, but he concedes his

argument is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.

2009). He raises the argument to preserve it for possible review by the Supreme

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

2009). He further asserts that the guideline range overstated the seriousness

of the offense and failed to account for his benign motive for reentering. 

His arguments are reviewable only for plain error because Moreno did not

make any objections to his sentence or argue in the district court that his

sentence was unreasonable. See Puckett v. United States, 556 U.S. 129, 134-35

(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (requiring

objection to substantive unreasonableness of sentence to preserve error).

Moreno’s argument that his within-guidelines sentence was greater than

necessary to meet § 3553(a)’s goals as a result of triple counting fails. See

Duarte, 569 F.3d at 529-31. In addition, the district court heard Moreno’s

statement concerning his reasons for reentering the United States before

imposing a sentence within the advisory guideline range. The district court

considered the statutory sentencing factors in § 3553(a) prior to imposing a

sentence within the Guidelines. Moreno’s within-guidelines sentence is entitled

to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347

(2007). He has failed to show that the presumption should not apply. The

district court did not abuse its discretion, much less plainly err, in imposing a

sentence within the advisory guideline range. See Gall v. United States, 552

U.S. 38, 50-51 (2007).

AFFIRMED.

2

Case: 12-50016 Document: 00512029264 Page: 2 Date Filed: 10/23/2012