IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50696

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ISIDRO RIVERA-DOMINGUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-1298-1

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Isidro Rivera-Dominguez appeals the 

sentence imposed following his guilty plea conviction for illegal reentry 

following deportation, in violation of 8 U.S.C. § 1326. He contends that the 64-

month within-guidelines sentence is substantively unreasonable because it is 

greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 

3553(a). According to Rivera-Dominguez, the guidelines range was too high to 

* 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

March 6, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50696

fulfill § 3553(a)’s goals because U.S. Sentencing Guideline § 2L1.2 is not 

empirically based and effectively double counts a criminal record. He also 

urges that the guidelines range overstates the seriousness of his non-violent 

reentry offense and fails to account for his personal history and characteristics, 

specifically, the fact that his prior felony convictions were committed more 

than 20 years earlier and his benign motive for reentering the United States.

We consider “the substantive reasonableness of the sentence imposed 

under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 

(2007). When, as here, the district court imposes a sentence within a properly 

calculated guidelines range, we “give great deference to that sentence and will 

infer that the judge has considered all the factors for a fair sentence set forth 

in the Guidelines in light of the sentencing considerations set out in § 3553(a).” 

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) 

(internal quotation marks and citation omitted). “A discretionary sentence 

imposed within a properly calculated guidelines range is presumptively 

reasonable.” Id.

In reliance on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), 

and for purposes of preserving the issue for possible further review, RiveraDominguez argues that the presumption of reasonableness should not apply 

because § 2L1.2 lacks an empirical basis. As he concedes, however, this 

argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th 

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

Cir. 2009). We have also rejected claims that double-counting necessarily 

renders a sentence unreasonable, see Duarte, 569 F.3d at 529-31, and that the 

Guidelines overstate the seriousness of illegal reentry because it is only a 

non-violent international-trespass offense, see United States v. Aguirre-Villa, 

460 F.3d 681, 683 (5th Cir. 2006).

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No. 14-50696

After considering the § 3553(a) factors and Rivera-Dominguez’s request 

for a downward variance, the district court concluded that a sentence within

the guidelines range was sufficient, and was not greater than necessary, to 

satisfy the goals in § 3553(a). Rivera-Dominguez’s assertions that § 2L1.2’s 

lack of an empirical basis, the double-counting, the non-violent nature of his 

offense, the remoteness of his prior convictions, and his motive for reentering 

justified a lower sentence are insufficient to rebut the presumption of 

reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th 

Cir. 2008). He has therefore failed to show that his within-guidelines sentence 

is substantively unreasonable. See Gall, 552 U.S. at 51.

The judgment of the district court is AFFIRMED.

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