IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2009
No. 08-40049
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERTO AGUILAR, JR, also known as Robert Aguilar
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No.7:07-CR-618-1
Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Aguilar, Jr., pleaded guilty to the charge of being found illegally
in the United States after having been deported. See 8 U.S.C. § 1326. Because
Aguilar had a prior conviction for robbery, his offense level was adjusted upward
by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). After granting the
Government’s request for a two-level downward departure for early disposition
under § 5K3.1, p.s., the district court sentenced Aguilar to a 37-month term of
*
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should not be published and is not precedent except under the limited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.
No. 08-40049
imprisonment, at the bottom of the guidelines range. Aguilar appeals his
sentence, arguing that it is unreasonable. In reviewing a sentence, we “consider
the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
Aguilar argues that § 2L1.2 is not empirically based and should be
accorded little weight in the 18 U.S.C. § 3553(a) analysis. Because Aguilar did
not raise this argument in the district court, plain error review applies. See
United States v. Baker, 538 F.3d 324, 332 (5th Cir.), cert. denied, 2009 WL 56591
(Jan. 12, 2009) (No. 08-7559). Aguilar has not shown error, plain or otherwise.
See United States v. Campos-Maldonado, 531 F.3d 337, 338-39 (5th Cir.), cert.
denied, 129 S. Ct. 328 (2008); United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
Aguilar is essentially asking this court to reweigh the § 3553(a) factors,
which we may not do. See Gall, 128 S. Ct. at 597. The totality of the
circumstances, considered in light of the § 3553(a) factors, supports the sentence
the district court imposed. See id.
AFFIRMED.
2