Case: 16-50432      Document: 00513832680         Page: 1    Date Filed: 01/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                   No. 16-50432 c/w
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 16-50433                            January 12, 2017
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALFREDO REYES-RUIZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1766-1
                            USDC No. 2:15-CR-907-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Alfredo Reyes-Ruiz pleaded guilty to illegally reentering the United
States after deportation in violation of 8 U.S.C. § 1326 and was sentenced
within the guidelines range to 30 months of imprisonment and three years of
supervised release. During the sentencing hearing, Reyes-Ruiz also pleaded
true to the allegation that he violated a condition of his supervised release by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50433

illegally reentering the United States, and he was sentenced upon revocation
to seven months of imprisonment, which was below the sentencing range
recommended by the Guidelines policy statements.
      For the first time, Reyes-Ruiz argues that his 37-month total sentence is
greater than necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a)
and is therefore unreasonable. In support of his argument, he asserts that his
illegal reentry offense is essentially an international trespass; that the illegal
reentry Guideline, U.S.S.G. § 2L1.2, is flawed because it is not empirically
based and results in the double counting of his criminal history; and that a
sentence at the bottom of the Guidelines would have been sufficient but not
greater than necessary to achieve the sentencing goals of promoting respect for
the law and providing just punishment and adequate deterrence.
      Because he does not argue that the district court committed any
procedural error in imposing the sentences, our review is confined to whether
the sentence is substantively reasonable. See Gall v. United States, 552 U.S.
38, 51 (2007). Further, because Reyes-Ruiz failed to raise his challenge in the
district court, our review is for plain error only. United States v. Peltier, 505
F.3d 389, 391 (5th Cir. 2007); United States v. Whitelaw, 580 F.3d 256, 259-60
(5th Cir. 2009). Although Reyes-Ruiz acknowledges that we apply plain error
review when a defendant fails to object in the district court to the
reasonableness of the sentence imposed, he notes there is a circuit split on the
issue and seeks to preserve the issue for possible further review.
      Reyes-Ruiz has failed to show that the imposition of the 37-month total
sentence constituted a clear or obvious error. At the outset, we note that the
district court was in a superior position to find facts and assess their
importance under § 3553(a), and we will not reweigh the district court’s
assessment of the § 3553(a) factors. See Gall, 552 U.S. at 51-52; United States


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                                   No. 16-50433

v. Heard, 709 F.3d 413, 435 (5th Cir. 2013).         Further, we have rejected
arguments that a sentence is substantively unreasonable because an illegal
reentry offense is essentially an international trespass, United States v.
Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008), and because the illegal
reentry Guideline is not based on “empirical data” and “double counts” prior
offenses, United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
Additionally, the seven-month revocation sentence is below the advisory
guidelines policy statement range of 8 to 14 months, and the district court’s
order that the revocation sentence run consecutively to the illegal reentry
sentence is consistent with U.S.S.G. § 7B1.3(f), p.s., which provides that “[a]ny
term of imprisonment imposed upon the revocation of . . . supervised release
shall be ordered to be served consecutively to any sentence of imprisonment
that the defendant is serving.”
      The judgment of the district court is AFFIRMED.




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