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

No. 11-50539 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ALBERTO MARTINEZ-MENDOZA, also known as Alberto Martinez, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-315-1

Before DAVIS, DeMOSS, and HAYNES, Circuit Judges. PER CURIAM: * Alberto Martinez-Mendoza pled gu i l ty to one count of unlawful reentry following deportation i n violation of 8 U.S.C. § 1326. The district court sentenced him to 41 months in prison, at the bottom of the guidelines range of 41 to 51 months. Martinez-Mendoza now app e a l s , ar guing that § 2L1.2 of the United States Senten c i n g Guidelines leads to double-counting of criminal history, is not empirically based, and results in excessive se n t e n c e s ; that his sentencing range overstates the seriousness of his illegal reentry offense, which 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 April 2, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat 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: 11-50539 Document: 00511808322 Page: 1 Date Filed: 04/02/2012No. 11-50539

he ass e rt s i s s imply an international trespass; that his criminal history was overrepresented; and that the district court did not take into account his history and characteristics, including his youth and clean record. We revi ew s e ntences for reasonableness, employing a deferential ab u s e - of

dis c retion standard, and we presume that a sentence within a properly calculated guidelines range is reasonable. See Gall v. United States , 552 U.S. 38, 51 (2007); United States v. Co o k s , 5 8 9 F.3d 173, 186 (5th Cir. 2009). The
p u rported double-counting and lack of empirical basis for § 2L1.2 do n o t necessarily render a within-guidelines sentence unreasonable. See, e.g., United States v. Duarte , 569 F.3d 528, 529-31 (5th Cir. 2009). As for his criminal record, Martinez-Mendoza had a prior conviction for assault and battery with a dangerous weapon, a conviction for driving under the influence, and prior unlawful entries that were not prosecuted. With respect to his intern a tional trespass argument, as we have previously noted in rejecting such an argument, “Congress considers illegal r eentry into the United States subsequent to a conviction for an aggravated felony an extremely serious offense punishable by
up to twenty years in prison.” United States v. Juarez-Duarte , 513 F.3d 204, 212 (5th Cir. 2008). We discern no improper weighing of any of the factors cited by MartinezMendoza. His mere disagreement with the court’s assessment of the sentencing factors is insufficient to rebut the presumption that the sentence is reasonable. See United States v. Ruiz , 621 F.3d 390, 398 (5th Cir. 201 0). As Martinez-Mendoza properly concedes, his contention that because § 2L1.2 is not empirically based, the presumption of reasonableness should not

a pply, is foreclosed. See Duarte , 569 F.3d at 529-31; United St a t e s v . Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 20 09). AFFIRMED.

2 Case: 11-50539 Document: 00511808322 Page: 2 Date Filed: 04/02/2012