IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51115

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE EDUARDO AGUILERA, also known as Jose Eduardo Torres Aguilera,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:11-CR-1032-1

Before SMITH, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

Jose Eduardo Aguilera appeals the concurrent, 36-month prison sentences

imposed following his guilty plea convictions for attempted illegal reentry and

making a false claim to United States citizenship. As a threshold matter,

Aguilera argues that a presumption of reasonableness should not apply to his

within-guidelines sentences on appellate review because the applicable

guideline, U.S.S.G. § 2L1.2, is not the result of empirical evidence and national

experience. As Aguilera acknowledges, this argument is foreclosed. See United

United States Court of Appeals

Fifth Circuit

F I L E D

June 28, 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.

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No. 11-51115

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009); United

States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).

Aguilera next contends that the district court made two legal errors during

the sentencing hearing and that the errors prevented the court from properly

considering § 2L1.2’s lack of empirical basis. As to the first error, Aguilera

observes that, during the sentencing hearing, the court incorrectly stated that

there was rarely an empirical basis for any of the guidelines offense levels. As

to the other error, he contends that the district court incorrectly stated that it

could not consider § 2L1.2’s lack of empirical foundation because this court had

foreclosed the issue.

Aguilera’s objection during the sentencing hearing that his sentences were

“greater than necessary” did not call his instant claims of legal error to the

district court’s attention in a manner that allowed the court to correct itself;

therefore, review is for plain error. See Mondragon-Santiago, 564 F.3d at 361. 

To prevail, he must show a forfeited error that is clear or obvious and affects his

substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he

makes such a showing, this court has the discretion to correct the error but only

if it “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation omitted).

Because the court’s statements at sentencing are vague, unclear, and

subject to interpretations other than those advanced by Aguilera, there is no

plain error. See id. Even if plain error review were inapplicable, Aguilera could

not prevail because district courts need not undertake “a piece-by-piece analysis

of the empirical grounding behind each part of the sentencing guidelines,”

Duarte, 569 F.3d at 530, and have the discretion “to consider the policy decisions

behind the Guidelines, including the presence or absence of empirical data, as

part of their [18 U.S.C.] § 3553(a) analyses.” Mondragon-Santiago, 564 F.3d at

366. 

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The district court herein expressly considered the policy considerations

behind the promulgation of the illegal reentry guideline; never indicated that for

policy reasons or any other reason that it wished to impose a departure sentence,

but could not, based on this court’s precedent; determined that, in light of

Aguilera’s three prior deportations, he should have accepted that he was not a

United States citizen at some point earlier than his instant offense; determined

that the facts and circumstances of Aguilera’s case did not fall outside the

heartland of cases; and found that the advisory guidelines range was sufficient,

but not greater than necessary, to achieve the § 3553(a) sentencing goals of

deterring another illegal reentry conviction, promoting respect for the law, and

ensuring the safety and welfare of the community. Accordingly, as to these

claims, Aguilera has shown no error, plain or otherwise.

Aguilera additionally argues that § 2L1.2’s lack of empirical basis

produced a flaw that resulted in the use of his prior burglary conviction to

increase both his offense level and criminal history score. Double counting is not

prohibited unless expressly forbidden by the particular Guideline at issue. See

United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Section 2L1.2, the

Guideline at issue, does not prohibit the double counting of which Aguilera

complains. See § 2L1.2, comment. (n.6). For these reasons, this claim fails.

Aguilera next argues that his 36-month prison terms are substantively

unreasonable because § 2L1.2 is not based on empirical evidence and because

the court failed to give adequate weight to his cultural assimilation, his

ineligibility for certain prison programs, and the nature of his illegal reentry

offense, which he compares to a regulatory or trespass offense. Aguilera

preserved his challenge to the substantive reasonableness of his sentences. See

Mondragon-Santiago, 564 F.3d at 361.

Aguilera’s arguments do not show that the district court erred in balancing

the § 3553(a) factors and instead reflect his disagreement with the propriety of

his sentences and the weighing of those factors. See, e.g., Duarte, 569 F.3d at

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529-31 (addressing empirical evidence argument); United States v. Rodriguez,

660 F.3d 231, 234-35 (5th Cir. 2011) (addressing cultural assimilation); United

States v. Garay, 235 F.3d 230, 232–34 & nn.13, 18, & 19 (5th Cir. 2000)

(addressing alien status); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th

Cir. 2006) (addressing nature of illegal reentry offense). He has failed to rebut

the presumption of reasonableness attaching to his within-guidelines sentences

on appellate review, see United States v. Cooks, 589 F.3d 173, 186 (5th Cir.

2009), or show that the district court abused its discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007).

Accordingly, the judgment of the district court is AFFIRMED.

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