     Case: 15-50025   Document: 00513207688   Page: 1   Date Filed: 09/25/2015




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

                              No. 15-50025
                                                                          Fifth Circuit

                                                                        FILED
                            Summary Calendar                    September 25, 2015
                                                                   Lyle W. Cayce
                                                                        Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JUAN CHINO-TELLEZ,

                                         Defendant-Appellant

Cons. w/ No. 15-50026

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JUAN CHINO-TELLEZ, also known as Juan Chino Tellez, also known as Juan
Chino, also known as Juan Tellez, also known as Julian Chiano, also known as
Juan C. Tellez, also known as Juan T. Chino, also known as Diablo,

                                         Defendant-Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:14-CR-253-1
                          USDC No. 2:14-CR-339-1
     Case: 15-50025      Document: 00513207688         Page: 2    Date Filed: 09/25/2015


                                      No. 15-50025

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Juan Chino-Tellez (Chino) appeals the 41-month within-guidelines
sentence he received following his guilty plea conviction for illegal reentry, as
well as the six-month within-guidelines sentence he received following the
revocation of his supervised release, which sentences were ordered to run
consecutively. For the first time on appeal, Chino argues that his cumulative
63-month sentence is substantively unreasonable because it is greater than
necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a). He asserts
that his illegal reentry offense is essentially a nonviolent international
trespass and that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is
problematic because it is not empirically based, atypically establishes an
offense level based on prior criminal conduct, and effectively double counts the
defendant’s criminal history in calculating a guidelines range. He also argues
that his sentence is greater than necessary to provide adequate deterrence and
fails to adequately account for his personal history and characteristics,
including his benign reasons for reentry. We review these newly raised claims
for plain error only. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007).
       When, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To rebut this presumption,
Chino must show “that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or



       * 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. 15-50025

improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” Id.
      As Chino acknowledges, his argument that the presumption of
reasonableness should not apply because § 2L1.2 lacks an empirical basis is
foreclosed, and he raises it only to preserve it for further review. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).           We
likewise have previously rejected the contention that a within-guidelines
sentence is unreasonable because § 2L1.2 lacks an empirical basis and
effectively double counts prior convictions. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 &
n.7. Also, we have not been persuaded by the claim that the Sentencing
Guidelines do not take into account the nonviolent nature of an illegal reentry
offense. See United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
Chino’s alleged benign motive for returning to this country is insufficient to
rebut the presumption of reasonableness attached to his within-guidelines
illegal reentry sentence. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008).
      Insofar as Chino challenges the consecutive nature of his sentences, his
challenge is unavailing.    Because his six-month revocation sentence falls
within the applicable advisory guidelines range and is consistent with U.S.S.G
§ 7B1.3(f) (mandating “[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”), it is entitled
to a presumption of reasonableness.         See, e.g., United States v. Lopez-
Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008) (citation omitted); United
States v. Candia, 454 F.3d 468, 474 (5th Cir. 2006). Chino has made no effort
to rebut the presumption of reasonableness afforded his revocation sentence;



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                                 No. 15-50025

his argument that his consecutive sentences were greater than necessary to
achieve the § 3553(a) goals is wholly conclusional.
      Thus, Chino has failed to show that his sentences amount to error, plain
or otherwise. Accordingly, the district court’s judgment is AFFIRMED.




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