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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50269

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NICOLAS ARROYO-CARBAJAL, also know as Nene Billarruel,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:09-CR-4-1

Before DAVIS, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Nicolas Arroyo-Carbajal (Arroyo) appeals the 86-month sentence imposed

by the district court following entry of a guilty plea to a charge under 8 U.S.C.

§ 1326 for being illegally present in the United States. He argues that his

sentence is substantively unreasonable under 18 U.S.C. § 3553(a) because

U.S.S.G. § 2L1.2 is not empirically based and gives excessive weight to a

defendant’s prior convictions in setting the offense level, thereby effectively

double-counting the defendant’s criminal record via his offense level and his

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2010

Charles R. Fulbruge III

Clerk

Case: 09-50269 Document: 00511014870 Page: 1 Date Filed: 01/28/2010
No. 09-50269

2

criminal history score. He contends that the sentence fails to take into account

his benign motive for returning to the United States. Arroyo asserts, in

addition, that his sentence is greater than necessary to achieve the goals of

§ 3553(a). Although Arroyo acknowledges that plain error review applies, he has

preserved the issue whether a failure to object to the reasonableness of a

sentence upon its imposition requires plain error review. See United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 

To show plain error, Arroyo must show a forfeited error that is clear or

obvious and that affects his substantial rights. See Puckett v. United States, 129

S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the

discretion to correct the error but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

We have rejected Arroyo’s argument that Kimbrough v. United States, 552

U.S. 85, 109-10 (2007), dictates that the appellate presumption of

reasonableness we accord to sentences imposed within a properly calculated

advisory sentencing guidelines range should not apply to sentences that were

calculated under Guidelines not derived from empirical data and national

experience. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert.

denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564 F.3d

357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). We have also rejected

Arroyo’s double-counting argument. See Duarte, 569 F.3d at 529-31 & n.11;

Mondragon-Santiago, 564 F.3d at 366-67.

The record shows that the district court based Arroyo’s sentence on the

advisory sentencing guidelines range, the information in the presentence report,

and the § 3553(a) factors. The district court judge implicitly considered the

arguments Arroyo presented at sentencing and determined that a

within-guidelines sentence was appropriate. Arroyo has not shown error, much

less plain error, in the district court’s imposition of sentence, and he has not

rebutted the presumption that his within-guidelines sentence is reasonable. See

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No. 09-50269

3

Gall v. United States, 552 U.S. 38, 50-51 (2007); Rita v. United States, 552 U.S.

338 (2007). 

AFFIRMED.

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