IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 his sentence. The

Government moves for summary affirmance or, alternatively, for an extension

of time to file an appellate brief. Campos-Cabrera opposes summary affirmance.

United States Court of Appeals

Fifth Circuit

F I L E D

February 23, 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.

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No. 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

imposition 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, 505

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 is reviewed under an

abuse-of-discretion standard. 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 have consistently rejected this argument. See United States v.

Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011); United States v. Duarte, 569

F.3d 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 personal history 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 guidelines range was appropriate. Campos-Cabrera has not

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No. 11-50548

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 motion 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 for an extension of time to file a brief is

DENIED as unnecessary.

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Case: 11-50548 Document: 00511766448 Page: 3 Date Filed: 02/23/2012