IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50363

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OSVALDO NAVA-ACOSTA, also known as Osvaldo Cossio-Acosta,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:12-CR-2738-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Osvaldo Nava-Acosta appeals the 41-month 

within-guidelines sentence imposed after he was convicted for illegal reentry 

following deportation. Nava-Acosta contests the substantive reasonableness 

of his sentence for being greater than necessary to accomplish the objectives of 

18 U.S.C. § 3553(a). In support of this claim, he challenges the use of U.S.S.G. 

§ 2L1.2, the illegal-reentry guideline, in calculating his guidelines range. He 

* 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

December 20, 2013

Lyle W. Cayce

Clerk

 

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No. 13-50363

asserts that this guideline (1) is not empirically based, (2) double counts his 

prior drug-trafficking conviction, and (3) fails to account for the nonviolent 

nature of his offense, which he insists is, “at bottom, a trespassory [sic]

offense.” Nava-Acosta also asserts that the district court failed to account for 

his personal circumstances and the circumstances of this offense, noting that 

he returned to the United States only to find work and thus earn money to 

support his family.

We review the substantive reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Although Nava-Acosta 

objected to the substantive reasonableness of his sentence, he raises his 

contention that his sentence is substantively unreasonable because of alleged 

flaws in § 2L1.2 for the first time on appeal. To preserve a claim of error, the 

defendant must raise it “with the district court in such a manner so that the 

district court may correct itself.” United States v. Rodriguez, 15 F.3d 408, 414 

(5th Cir. 1994) (internal quotation marks and citations omitted). These 

contentions, therefore, are arguably reviewed for plain error. See id. We need 

not determine whether plain error review is appropriate in this case, however,

because Nava-Acosta’s claims fail even under the abuse-of-discretion standard. 

See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).

Although Nava-Acosta challenges the applicability of the presumption of 

reasonableness to his within-guidelines sentence under § 2L1.2, he 

acknowledges that this challenge is foreclosed and that he raises it only to 

preserve it for possible future review. See United States v. MondragonSantiago, 564 F.3d 357, 366-367 (5th Cir. 2009) (rejecting identical argument). 

His claim of “double counting” also fails, see United States v. Duarte, 569 F.3d 

528, 529-30 (5th Cir. 2009), as does his contention that § 2L1.2 results in an 

excessive sentence because it is not empirically based, see United States v. 

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Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011). Similarly, we have never been 

persuaded that the Sentencing Guidelines fail to account for the nonviolent 

nature of an illegal reentry offense. See United States v. Aguirre-Villa, 460 

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

The district court considered Nava-Acosta’s efforts to obtain a lesser 

sentence but concluded that a sentence at the bottom of the guidelines range 

was appropriate because of the nature of Nava-Acosta’s offense and his 

criminal history. His contentions regarding his mitigating factors and benign 

motive are insufficient to rebut the presumption of reasonableness. See United 

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. GomezHerrera, 523 F.3d 554, 565-66 (5th Cir. 2008).

The sentence imposed by the district court is AFFIRMED.

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