IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50394

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JOSE LUIS GAMEZ,

Defendant−Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:13-CR-21-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Gamez pleaded guilty of illegal reentry following deportation in 

* 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

November 14, 2013

Lyle W. Cayce

Clerk

 

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No. 13-50394

violation of 8 U.S.C. § 1326 and was sentenced within the guideline range to

fifty-seven months of imprisonment. For the first time on appeal, he challenges 

the reasonableness of his sentence, claiming it is greater than necessary to 

achieve the sentencing goals of 18 U.S.C. § 3553(a). Gamez contends that the 

illegal-reentry guideline, U.S.S.G. § 2L1.2, is not empirically based and doublecounts criminal history. He additionally argues that the presumption of reasonableness should not apply to a sentence based on that guideline, but he 

concedes that the argument is foreclosed by United States v. MondragonSantiago, 564 F.3d 357, 366-67 (5th Cir. 2009), and he raises the issue to 

preserve it for possible further review. He further argues that the recommended guideline range overstated the seriousness of the offense and failed 

to account for his personal circumstances and motive for reentry.

Because Gamez did not contest reasonableness in the district court, his 

argument is reviewable for plain error only. See United States v. Peltier, 505 

F.3d 389, 391-92 (5th Cir. 2007). Gamez acknowledges that his failure to object 

results in the application of the plain-error standard of review, conceding that 

the issue is foreclosed by Peltier; he notes that the circuits are divided on 

whether a failure to object to the reasonableness of the sentence upon its 

imposition requires plain-error review, and he seeks to preserve the issue for 

possible review by the Supreme Court.

As Gamez correctly concedes, the argument that the presumption of reasonableness should not apply to his sentence because § 2L1.2 lacks empirical 

support has been rejected by this court. See United States v. Duarte, 569 F.3d 

528, 529-31 (5th Cir. 2009); see also Mondragon-Santiago, 564 F.3d at 366-67. 

Gamez’s argument that his guideline range was greater than necessary to meet 

§ 3553(a)’s goals as a result of “double counting” is likewise unavailing. See 

Duarte, 569 F.3d at 529-31. This court has also previously rejected the notion

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No. 13-50394

that illegal reentry is merely a trespass offense that is treated too harshly 

under § 2L1.2. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 

2006).

The record reflects that the district court considered Gamez’s mitigation 

arguments but rejected them in favor of a guideline sentence. The withinguidelines sentence is entitled to a presumption of reasonableness. See Rita v. 

United States, 551 U.S. 338, 347 (2007). Gamez’s contention concerning his 

motive for reentry fails to rebut the presumption of reasonableness attached to 

his within-guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d 

554, 565-66 (5th Cir. 2008). Gamez has failed to show that the sentence is 

plain error. See Peltier, 505 F.3d at 391-92. Accordingly, the judgment is 

AFFIRMED.

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