IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51120

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PATRICIO CORNEJO-BUEZO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-343-1

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Patricio Cornejo-Buezo pleaded guilty to illegal reentry after deportation

in violation of 8 U.S.C. § 1326 and was sentenced to 54 months of imprisonment

and three years of supervised release. Cornejo-Buezo challenges the substantive

reasonableness of his 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

not empirically based and double counts the defendant’s criminal history. He

United States Court of Appeals

Fifth Circuit

F I L E D

August 16, 2013

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.

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No. 12-51120

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

that his argument is foreclosed by United States v. Mondragon-Santiago, 564

F.3d 357, 366-67 (5th Cir. 2009), and he raises the argument to preserve it for

possible review by the Supreme Court. He further argues that the guideline

range overstated the seriousness of the offense and failed to account for his

contention that his reentry for economic reasons was a benign motive.

Because Cornejo-Buezo did not make any objections to his sentence or

argue in the district court that his sentence was unreasonable, his arguments

are reviewable only for plain error. 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). Cornejo-Buezo acknowledges that his failure to object to his sentence in

the district court results in the application of the plain error standard of review;

however, he notes that the circuits are divided on whether a failure to object to

the reasonableness of the sentence upon its imposition requires plain error

review, citing United States v. Autery, 555 F.3d 864, 868-71 (9th Cir. 2009) and

United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005), and he

seeks to preserve the issue for possible review by the Supreme Court.

As he so concedes, Cornejo-Buezo’s argument that the presumption of

reasonableness should not apply to his sentence because § 2L1.2 lacks empirical

support has been rejected by this court. See United States v. Duarte, 569 F.3d

528, 529-31 (5th Cir. 2009) (rejecting the notion that this court should examine

the empirical basis behind each Guideline before applying the presumption of

reasonableness); see also Mondragon-Santiago, 564 F.3d at 366-67. His

argument that his guidelines range was greater than necessary to meet

§ 3553(a)’s goals as a result of “double counting” is unavailing. The Guidelines

provide for consideration of a prior conviction for both criminal history and the

§ 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have also rejected the

argument that such double-counting necessarily renders a sentence

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unreasonable. See Duarte, 569 F.3d at 529-31. We have previously rejected the

argument that illegal reentry is merely a trespass offense that is treated too

harshly under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683

(5th Cir. 2006).

The district court heard the arguments of Cornejo-Buezo’s counsel

concerning his reasons for reentering the United States before imposing a

sentence within the advisory guideline range. The district court considered

Cornejo-Buezo’s personal history and characteristics and the other statutory

sentencing factors in § 3553(a), in particular Cornejo-Buezo’s criminal history

of assault offenses, prior to imposing a sentence within the Guidelines. The

within-guidelines sentence is entitled to a presumption of reasonableness. See

Rita v. United States, 551 U.S. 338, 347 (2007). Cornejo-Buezo’s argument

concerning his benign motive for reentry for economic reasons fails to rebut that

presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th

Cir. 2008). Cornejo-Buezo has not shown that the district court’s imposition of

a within-guidelines sentence of 54 months constituted plain error. See Peltier,

505 F.3d at 391-92. Accordingly, the judgment of the district court is

AFFIRMED.

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