Case: 12-50449 Document: 00512239319 Page: 1 Date Filed: 05/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2013
No. 12-50449
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
EDDER GREGORIO ORTEGA-ALVARADO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-110-1
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Edder Gregorio Ortega-Alvarado pleaded guilty to illegally reentering the
United States after having been removed, in violation of 8 U.S.C. § 1326, and
received 46 months’ imprisonment. Contesting only the substantive
reasonableness of his sentence, which is at the bottom of the advisory Guidelines
sentencing range, Ortega contends his sentence is greater than necessary to
accomplish the sentencing goals provided in 18 U.S.C. § 3553(a); he does not
claim procedural error by the district court in imposing his sentence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50449 Document: 00512239319 Page: 2 Date Filed: 05/13/2013
No. 12-50449
Post-Booker, the Sentencing Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness under
an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). As noted, Ortega does not
claim procedural error.
Regarding his claim of substantive unreasonableness, Ortega contends
Guideline § 2L1.2 results in an excessive sentence because it is not empirically
based, and his reentry amounts to a mere international trespass. Our court has
consistently rejected both contentions. E.g., United States v. Duarte, 569 F.3d
528, 529-30 (5th Cir. 2009) (rejecting empirical-basis contention); United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (rejecting international-
trespass contention). (Ortega concedes the lack-of-empirical-basis claim is
foreclosed; he raises it only to preserve it for possible further review.)
Ortega contends also his sentence is excessive because Guideline § 2L1.2:
resulted in double-counting; established an advisory Guidelines range
overstating the seriousness of his offense of conviction; and failed to account for
his cultural assimilation, his benign motives for reentering the United States,
and his reentering under duress. At sentencing, the district court considered:
the advisory Guidelines sentencing range; Ortega’s request for a downward
variance and his statement in allocution; the Government’s request for a within-
Guidelines sentence; and the § 3553(a) factors. It determined a 46-month
sentence was appropriate. The record reflects the court made an individualized
determination, based on the facts presented, in the light of the § 3553(a)
sentencing factors. See Gall, 552 U.S. at 50.
“[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2
Case: 12-50449 Document: 00512239319 Page: 3 Date Filed: 05/13/2013
No. 12-50449
2006); Rita v. United States, 551 U.S. 338, 347 (2007). Ortega has not shown the
court failed to give proper weight to his contentions or to any particular § 3553(a)
factor. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Therefore,
he fails to show that the court abused its discretion, see Gall, 552 U.S. at 51, and
fails to rebut the presumption of reasonableness that attached to his
within-Guidelines sentence. E.g., Alonzo, 435 F.3d at 554-55; United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
AFFIRMED.
3