### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50548 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JESUS CAMPOS-CABRERA, also known as J. Jesus Campos-Cabrera, also known as Jesus Campos, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-326-1

Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges. PER CURIAM: * Jesus Campos-Cabrera appeals the 46-month within-guidelines sentence imposed following his conviction for illegal reentry after deportation. CamposCabrera challenges only the substantive reasonableness of h i s s entence. The Government moves for summary affirmance or, alternatively, for an extension of time to file an appellate brief. Campos-Cabrera opposes summary affirmance. 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 23 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 TH 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 TH C IR

. R. 47.5 .4. Case: 11-50548 Document: 00511766448 Page: 1 Date Filed: 02/23/2012No. 11-50548

Campos-Cabrera concedes that he failed to object to his sentence after it

was imposed and that this court’s review is limited to plain error. Nevertheless, he seeks to preserve for further review his contention that an objection after the imp o s ition of sentence is not required for abuse-of-discretion review. Because Campos-Cabrera did not object to the reasonableness of his sentence after it was imposed, review is arguably for plain error. See United States v. Peltier , 5 05 F.3d 389, 391-92 (5th Cir. 2007) ; but see United States v. Flanagan , 87 F.3d 121, 124 (5th Cir. 1996). This court need not determine whether plain error review is appropriate because Campos-Cabrera’s arguments fail even under the abuseof-discretion standard of review. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). The substantive reasonableness of a sentence i s r eviewed under an abuse-of-discretion sta n dard. Gall v. United States , 552 U.S. 38, 51 (2007). Because Campos-Cabrera’s sentence was within his advisory guidelines range, his sentence is presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Campos-Cabrera argues that the seriousness of his offense is overstated because U.S.S.G. § 2L1.2 lacks an empirical basis and double counts criminal history. We hav e c o n s i s t ently rejected this argument. See United States v. Rodriguez , 660 F.3d 231, 232-33 (5th Cir. 2011) ; United States v. Duarte , 5 6 9 F

. 3 d 528, 529-30 (5th Cir. 2009). Further, as he acknowledges, CamposCabrera’s argument that he deserved a lesser sentence based upon the disparity in fast track early disposition programs is foreclosed by United States v. GomezHerrera , 523 F.3d 554, 562-63 & n.4(5th Cir. 2008). Campos-Cabrera also contends that his guidelines range failed to account for his pers o n al hi story and circumstances. The district court listened to Campos-Cabrera’s arguments for a lesser sentence but found that a sentence at the bottom of his guideli n e s r a nge was appropriate. Campos-Cabrera has not

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shown sufficient reason for this court to disturb the presumption of reasonableness applicable to his sentence. See Cooks, 589 F.3d at 186. Accordingly, the judgment of the district court is AFFIRMED. The Government’s moti o n for summary affirmance is DENIED. See United States

v. Holy Land Found. for Relief & Dev. , 445 F.3d 771, 781 (5th Cir. 2006). The Government’s alternative motion f o r a n e xtension of time to file a brief is DENIED as unnecessary.

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