### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 o f 8 U.S.C. § 1 326 and was sentenced to 5 4 months of imprisonment and three years of s upervised r elease. Cornejo-B u e z o c h allenges t h e substantive reasonableness of his s e n tence, arguing t hat his sentence is unreasonable because it is greater than necessary to achieve the s entencing goals of 18 U.S.C. § 3553(a). He contends that the illegal reentry Guideline, U.S.S.G. § 2 L 1

. 2 , is not e mpirically b ased and double counts the defendant’s c riminal history. He U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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argues that the presumption o f reasonableness should no t ap p ly , b u t h e c oncedes that h is argument is foreclosed by U nited States v. Mondragon-Santiago , 564 F.3d 357, 3 66-67 (5th Cir. 2009), and he raises t he argument to preserve it for possible review by t h e Supreme Court. H e further argues t hat the guideline range overs t a t e d t h e seriousness of the offense and failed t o account for his contention that his reentry for economic reasons was a benign motive. Because C ornejo-Buezo did not make any objections to his sentence or argue in the district court that h is sentence was unr e a sonable, 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, 39 1

- 9 2 ( 5 th Cir. 2007) (requiring objection to substantive unreasonableness of sent e n c e 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 c ircuits a r e divided on whether a failure to object to the reasonableness of the sentence u pon its imposition requires plain error review, citing United States v. Autery , 555 F.3d 864, 868-71 (9th Cir. 2009) and United S t a t e s 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-B u ezo’s argument that the presumption of reasonableness should not apply t o his sentence because § 2L1.2 l acks empirical support has been rejected by this court. S e e United States v. Duarte , 569 F.3d 528, 529-31 (5th C ir. 2 009) (rejecting the notion t hat this court should examine the e mpirical basis behind each Guideline before a pplying the presumption of reasonableness); see a lso Mondragon-Santiago , 564 F.3d at 366-67. His argument that h is guidelines range was greater than necessary to meet § 3553(a)’s goals as a result of “double c o unting” is unavailing. T he Guidelines provide for consideration of a prior conviction for both criminal h istory and the § 2L1.2 enhancement. See § 2L1.2, comment. (n.6). We have also rejected the argument that such double- c o unting n ecessarily r enders a s entence
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unreasonable. See Duarte , 569 F.3d at 5 29-31. We have previously rejected the argument that illegal reentry i s m e rely a trespass offense that is treated too harshly under § 2 L1.2. See U nited S tates v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). The district court heard the arguments o f Cornejo-Bue z o’s counsel concerning his reasons for reentering the United States before imposing a sentence within the a dvisory guideline range. T he district c ourt considered Cornejo-Bu e z o ’ s personal history and characteristics and the other s tatutory sentencing factors i n § 35 5 3 ( a) , in particular C ornejo-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, 34 7 ( 2 0 0 7 )

. Cornejo-Buezo’s argument concerning his benign motive for reentry for economic reasons fails to rebut that presumpt i o n . See United States v. Gomez-Herrera , 523 F.3d 5 54, 565-66 (5th Cir. 2008). Cornejo-Buezo h as not shown that the district court’s i mposition of a within-guidelines sentence of 54 months constituted plain error. See Peltier , 505 F. 3 d at 391-92. Accordingly, the j udgment of the district court is AFFIRMED.

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