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

No. 11-50456 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. HECTOR ENRIQUE ESTRADA MURILLO, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-337-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Hector Enrique Estrada Murillo (Estrada) was sentenced to concurrent 57-month terms of imprisonment following his guilt y p lea to attempted illegal reentry and false personation in immigration matters. He argues t h a t h is sentence, which is at the bottom of the applicable guidelines range, is unreasonable. Estrada does not contend that the district court committed any procedural

error regarding his s e n t e n c e . Thus, this court’s review is confined to whether 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 Februa ry 24 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50456 Document: 00511767258 Page: 1 Date Filed: 02/24/2012No. 11-50456

the sentence is substantively unreasonable. See Gall v. United States , 552 U.S. 38, 51 (2007). C i t i n g United States v. Peltier , 505 F.3d 389, 391-92 (5th Cir. 2 007), Estrada acknowledges that this court’s review is for plain err o r w h e n a defendant fails to object to the reasonableness of a sentence after the imposition of sentence. Nevertheless, he seeks to preserve for further review his contention that an objection is not required. This court need not determine whether plain

e r r o r r eview is appropriate because Estrada’s arguments fail even under the abuse-of-discretion standard of review. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). This court has consis t e ntly r e j e c t e d E s tr a da’s “double counting” argument and his argument that U.S.S.G. § 2L1.2 results in an excessive sentence because it is not empirically based. See United States v. Duart e , 5 6 9 F

. 3d 528, 529-30 (5th Cir. 2009). We als o have rejected the “international trespass” argument that Estrada asserts. See United States v. Aguirre-Villa , 460 F.3d 681, 683 (5th Cir. 2006). A s to Estrada’s argument that the Guidelines fail to accoun t f o r t h e seriousness of his offense or for his personal history and characteristics, t he dis tric t c o urt e xp r e ssly considered Estrada’s arguments for a variance, including his cultural assimilation, the age of Estrada’s prior drug-trafficking conviction, the lack of an empirical basis for § 2L1.2, the relative h a r shness of prison sentences on aliens, and Estrada’s substance dependency issues. The district court also considered Estrada’s criminal history, wh i ch the district court considered extensive and included violent acts upon others. The district court concluded that a sentence within the Guidelines “was consistent with all of the purposes of the sentencing statute.” Estrada has not shown that the district court failed to give proper weight to his arguments or any particular 18 U.S.C. § 3553(a) factor. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). He has thus failed to rebut the presumption of reasonableness that is accorded

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his wit h i n - gu i delines sentence. See id. ; United States v. Gomez-Herrera , 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, the district court’s judgment is AFF I RM ED. The Government’s motion for summary affirmance is DENIED. Because no further briefing is required, the Government’s motion for an extension of time to file a brief is DENIED.

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