### 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 Sant o s - Moral was sentenced to a 5 7

- month term of imprisonme nt , following his guilty

- plea conviction for being illega l l y 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 Guide lines’ sentencing range. He challenges only the substantive reasonableness of his within

-

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 13, 2015 Lyle W. Cayce Clerk Case: 14-50705 Document: 00512968069 Page: 1 Date Filed: 03/13/2015No. 14

- 50705
Guidelines sentence, asserting it is greater than necessary to satisfy t h e 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

sen tence 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

- Gut ierrez , 517 F.3d 751, 764 (5th Cir. 2008). Of significance for the issue presented, t here is a rebuttable presumption of reasonableness to a within

- G uidelines sentence

. E.g., United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). To preserve the c hallenge for possible further review, Santos asserts th at presumption should not apply because Guideline § 2L1.2 ( the illegal

- reentry Guideline ) lacks an empirical basis. As he concedes, how ever , 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. M ondragon

- Santiago , 564 F.3d 357, 366

- 67 (5th Cir. 2009). Additionally, our court has rejected the contention that the Guideline overstate s the seriousness of illegal reentry becaus e it is claimed to be simply an international

- trespass offense. E.g., United States v. Juarez

Duarte , 513 F.3d 204, 212 (5th Cir. 2008). At senten cing, 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 sufficie nt to rebut the above

- described presumption

2 Case: 14-50705 Document: 00512968069 Page: 2 Date Filed: 03/13/2015No. 14

- 50705
of reasonableness afforded his within

- G uidelines 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 , o r with the weight given to the § 3553(a) factors , does not suffic e to rebut that presumption. E.g., United States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 2010) (citation omitted). AFFIRMED.

3 Case: 14-50705 Document: 00512968069 Page: 3 Date Filed: 03/13/2015