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

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 c o ncurre nt , 3 6

- m o nth prison sentences imposed following his guilty plea convictions for attempted illegal reentry and making a false claim to United States citizenship. As a threshold ma t ter, Aguilera argues that a presumption of reasonab l e n e s s s h ould not apply to his within-guidelines sentences on appell a t e 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 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 June 28 , 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: 11-51115 Document: 00511903885 Page: 1 Date Filed: 06/28/2012No. 11-51115

States v. Mondragon-Santiago , 564 F.3d 357, 366-67 ( 5 th C ir. 2009); United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2 009). Aguilera next contends that the district court made two l e gal errors during the sentencing hearing and that the errors prevented the court from prop e rl y considering § 2L1.2’s lack of empirical ba s i s . A s t o 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 in c o rr e c t l y stated that it could not consider § 2L1.2’s lack of empirical foundation because this court had foreclosed the issue. Aguil era’s objection during the sentencing hearing that his sente nc e s w ere “greater than ne c e ssary” did not call his instant claims of legal error to the district court’s attention in a manner that al l owed 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 pub l i c r eputation of judicial proceedings.” Id . (internal quotation marks and citation omitted). Because the court ’ s s t atements at sentencing are vague, unclear, and subject to interpretations other th a n 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 beh i n d 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.

2 Case: 11-51115 Document: 00511903885 Page: 2 Date Filed: 06/28/2012No. 11-51115

The distri c t c ourt 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 l i gh t 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 Aguile r a ’ 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 § 3 5 5 3 ( a) sentencing goals of deterring another illegal reentry conviction, promoting respect for the law, and ensuring the safety a n d 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 resulte d 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 p rohibit the double counting of which Aguilera complains. See§ 2L1.2, comment. (n.6). For these reasons, this claim fails. Aguilera next ar gu e s that his 36-month prison terms are substantively unreasonab l e b ecause § 2L1.2 is not based on empirical evidence and because the court failed to give adequate weight to his c u l t u r al assimilation, his ineligibility for certain prison programs, and the nature of h i s illegal reentry

o ffense, which he compares to a regulatory or trespass offense. Agu i l e r a 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 c ourt erre d in b alancing 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
3 Case: 11-51115 Document: 00511903885 Page: 3 Date Filed: 06/28/2012No. 11-51115

529-31 (addressing emp i rical 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 C i r . 2 0 0 0) (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 , 5 8 9 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.

4 Case: 11-51115 Document: 00511903885 Page: 4 Date Filed: 06/28/2012