### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14 - 50 696 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. 2:1 3
- CR
- 1298
- 1 Before SMITH, WIENER, and ELROD, Circuit Judges. PER CURIAM: * Defendant
- Appellant Jose Isidro Rivera
- Dominguez appeals the sentence imposed f ollowing his guilty plea conviction f or illegal reentry followin g deportation , in violation of 8 U.S.C. § 1326 . He contends that the 64
- month within
- guidelines sentence is substantively unreasonable be cause it is greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a). According to Rivera
- Dominguez , the guideline s range was too high to

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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

### FILED March 6, 2015 Lyle W. Cayce Clerk Case: 14-50696 Document: 00512960779 Page: 1 Date Filed: 03/06/2015No. 14 - 50 696 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 overstate s the seriousness of his non
- violent reentry offense and fail s to account for his personal history and characteristics, specifically , th e 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 se ntence 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 wi thin 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, Rivera
Dominguez argues that the pre sumption of reasonableness should not apply because § 2L 1. 2 lacks an empirical basis. As he concedes, however, t his 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 3 57, 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 G uidelines 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).
2 Case: 14-50696 Document: 00512960779 Page: 2 Date Filed: 03/06/2015No. 14 - 50 696 After consider ing the § 3553(a) factors and Rivera
- Dominguez’s request for a downward variance , the district court concluded that a sentence with in the guideline s 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 remoten ess 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 , 5 52 U.S. at 51 . T he judgment of the district court is AFFIRMED.

3 Case: 14-50696 Document: 00512960779 Page: 3 Date Filed: 03/06/2015