### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 50059 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JULIO CESAR HERNANDEZ

- ARCHILA, also known as Julio Cesar Hernandez

- Archilla , Defendant

- Appellant

---------------------------------------------------------------------------------------- Consolidated with: 1 7

- 50071 UNITED STATES OF AMERICA, Plaintiff

- Appellee

v. JULIO CESAR HERNANDEZ

- ARCHILA, De fendant

- Appellant
Appeal s from the United States District Court for the Western District of Texas USDC No. 3:16

- CR

- 1410

- 1 USDC No. 3:16

- CR

- 1699

- 1 United States Court of Appeals Fifth Circuit 

### FILED November 6, 2017 Lyle W. Cayce Clerk Case: 17-50059 Document: 00514226365 Page: 1 Date Filed: 11/06/2017No. 17

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2 Before REAVLEY, PRADO, and GRAVES, Circuit Judges. PER CURIAM: * In these consolidated appeals, Julio Cesar Hernandez

- Archila challenges (1) the 21

- month term of imprisonment imposed for his conviction of illegal reentry of the United States after deportation, and (2) the consecutive 18

- month term of imprisonment imposed following the revoca tion of his supervised release for a prior illegal reentry offense. He argues that the combined sentence is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a) and therefore is substantively unreasonable. Because Hernandez

- Archil a did not object to the reasonableness of his sentences in the district court , we will review for plain error. See United States

v. Whitelaw , 580 F.3d 256, 259

- 60 (5th Cir. 2009) ; United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007)

. Hernandez

- Archila notes that there is a circuit split on the issue whether the failure to object to the reasonableness of a sentence requires plain error review, and he raises the issue to preserve it for further review. To demonstrate plain error, Hernandez

- Arch ila must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett

v. United States , 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Because the sentences fall within thei r respective guidelines ranges, they are entitled to a presumption of reasonableness. See United States

v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009); United States v. Lopez

- Velasquez ,

* 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. Case: 17-50059 Document: 00514226365 Page: 2 Date Filed: 11/06/2017No. 17

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3 526 F.3d 804, 809 (5th Cir. 2008) . Hernandez

- Archila argues that the sentence imposed for his illegal reentry offense should not be accorded a presumption of reasonableness because the applicable Guideline, U.S.S.G. § 2L1.2 , is not empirical ly based . However, he concedes that 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 357, 366

- 67 (5th Cir . 2009). He raises the issue to preserve it for further review. In previous cases, we have rejected several of the arguments that Hernandez

- Archila raises on appeal. We have not been persuaded by the contention that § 2L1.2’s lack of an empirical founda tion necessarily renders its application unreasonable. See Mondragon

- Santiago , 564 F.3d at 366

- 67. Nor have we been persuaded that the offense of illegal reentry is treated too harshly under § 2L1.2 because it is in essence an international trespass. Se e United States v. Juarez

- Duarte , 513 F.3d 204, 212 (5th Cir. 2008). We have rejected the contention that § 2L1.2’s double

- counting of a defendant’s criminal history necessarily renders a sentence unreasonable. See Duarte , 569 F.3d at 529

- 31. Additional ly, Hernandez

- Archila’s challenge to the district court’s decision to run his revocation sentence consecutively to his illegal reentry sentence is unpersuasive given that the S entencing Guidelines recommend that a revocation sentence of imprisonment be imp osed to run consecutively to any sentence of imprisonment that the defendant is serving. See U.S.S.G. § 7B1.3(f), p.s. Further, the record reflects that the district court considered, but rejected, Hernandez

- Archila’s argument that his desire to reunite with his family in the United States, and especially his concern for his ill mother, warranted leniency. Hernandez

- Archila’s contention that his benign motives for returning to the United States warranted a lesser sent ence is unavailing. Case: 17-50059 Document: 00514226365 Page: 3 Date Filed: 11/06/2017No. 17

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4 See United States v. Gomez

- Herrera , 523 F.3d 554, 565

- 66 (5th Cir. 2008). Hernandez

- Archila’s arguments amount to a request for this court to re weigh the sentencing factors, which we will not do. See United States v. McElwee , 646 F.3 d 328, 344 (5th Cir. 2011). Hernandez

- Archila has not shown that the district court failed to consider any significant factors, gave undue weight to any improper factors, or clearly erred in ba lancing the sentencing factors; thus, he has not rebutted t he p resumption of reasonableness. See Cooks , 589 F.3d at 186. Accordingly, t he judgments of the district court are AFFIRMED. Case: 17-50059 Document: 00514226365 Page: 4 Date Filed: 11/06/2017