### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Antoni o Moreno-Hernandez appeals from the sentence imposed following his guilty-plea conviction for illegal r e e n t ry . 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 sub s t a n tive reasonableness o f th e 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 th a t th e illegal reentry Guideline, U.S.S.G. § 2L1.2, is U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 23 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-50016 Document: 00512029264 Page: 1 Date Filed: 10/23/2012No. 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 (200 7) , h e argues that the presumption of reaso n ab l e n ess 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 th e 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 distri c t 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 tripl e c o u nt i n g fails. See Duarte , 569 F.3d at 529

- 31. In addition, the district court heard Moreno’s statement concernin g h i s reasons for reentering the United States before imposing a sentence within the advisory guideline ran ge. The district court considered the sta t utory 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 shou l d n o t apply. The dis trict court did not abuse its discretion, much less plainly err, in imposing a
sen t ence 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