IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 guilty to one count of unlawful reentry

following deportation in 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 appeals, arguing that § 2L1.2 of the

United States Sentencing Guidelines leads to double-counting of criminal

history, is not empirically based, and results in excessive sentences; that his

sentencing range overstates the seriousness of his illegal reentry offense, which

United States Court of Appeals

Fifth Circuit

F I L E D

April 2, 2012

Lyle W. Cayce

Clerk

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.

Case: 11-50539 Document: 00511808322 Page: 1 Date Filed: 04/02/2012
No. 11-50539

he asserts is simply 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 reviewsentences for reasonableness, employing a deferential abuse-ofdiscretion 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. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The

purported double-counting and lack of empirical basis for § 2L1.2 do not

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 international

trespass argument, as we have previously noted in rejecting such an argument,

“Congress considers illegal reentry 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. 2010). 

As Martinez-Mendoza properly concedes, his contention that because

§ 2L1.2 is not empirically based, the presumption of reasonableness should not

apply, is foreclosed. See Duarte, 569 F.3d at 529-31; United States v.

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

AFFIRMED.

2

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