IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50705

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DAVID JESUS SANTOS-MORAL,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-1190-1

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

David Jesus Santos-Moral was sentenced to a 57-month term of 

imprisonment, following his guilty-plea conviction for being illegally present in 

the United States following deportation, in violation of 8 U.S.C. § 1326. That 

sentence is at the bottom of the advisory Sentencing Guidelines’ sentencing 

range. He challenges only the substantive reasonableness of his within-

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50705

Guidelines sentence, asserting it is greater than necessary to satisfy the 

sentencing goals of 18 U.S.C. § 3553(a).

Although post-Booker, the Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard, the district court must still properly 

calculate the advisory Guidelines-sentencing range for use in deciding on the 

sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that 

respect, for issues preserved in district court, its application of the Guidelines 

is reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

Of significance for the issue presented, there is a rebuttable presumption 

of reasonableness to a within-Guidelines sentence. E.g., United States v. 

Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To preserve the challenge for 

possible further review, Santos asserts that presumption should not apply 

because Guideline § 2L1.2 (the illegal-reentry Guideline) lacks an empirical 

basis. As he concedes, however, his argument is foreclosed because our court 

has rejected “double-counting” contentions and assertions that the Guideline 

lacks an empirical basis. E.g., United States v. Duarte, 569 F.3d 528, 529-31 

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

(5th Cir. 2009). Additionally, our court has rejected the contention that the 

Guideline overstates the seriousness of illegal reentry because it is claimed to 

be simply an international-trespass offense. E.g., United States v. JuarezDuarte, 513 F.3d 204, 212 (5th Cir. 2008).

At sentencing, Santos discussed his lack of education; the conditions in 

his home country; and his return to the United States to find employment and 

provide for his family. The court found Santos’ allocution unpersuasive. His

motives for reentry are not sufficient to rebut the above-described presumption 

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No. 14-50705

of reasonableness afforded his within-Guidelines sentence. E.g., United States 

v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Likewise, defendant’s 

mere disagreement with the propriety of a sentence, or with the weight given 

to the § 3553(a) factors, does not suffice to rebut that presumption. E.g., United 

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (citation omitted). 

AFFIRMED.

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