     Case: 10-50430 Document: 00511354110 Page: 1 Date Filed: 01/18/2011




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

                                                 FILED
                                                                          January 18, 2011
                                     No. 10-50430
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE DE PAZ-FLORES,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1570-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jose De Paz-Flores appeals his within-Guidelines sentence of 70 months’
imprisonment, the lowest in his advisory sentencing range, imposed following
his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a).
De Paz contends his sentence is greater than necessary to meet 18 U.S.C.
§ 3553(a)’s sentencing goals, rendering it substantively unreasonable, because:
(1) his criminal history was taken into account twice in determining his
sentencing range; (2) his offense was nonviolent, akin to trespass; (3) his highest

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50430 Document: 00511354110 Page: 2 Date Filed: 01/18/2011

                                    No. 10-50430

previous sentence, 37 months, was received on a drug-trafficking conviction; (4)
a condition caused by a car accident renders his incarceration comparatively
difficult; (5) he has a wife and infant in Mexico; and (6) his motive for reentry
was to work to assist his family.
      As De Paz concedes, he did not object in district court to the
reasonableness of his sentence. Therefore, this issue is reviewed only for plain
error. E.g., United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied,
129 S. Ct. 2814 (2009). Also conceding our court requires an objection to the
reasonableness of the sentence to be made in district court, De Paz urges that
should not be required and raises that issue to preserve it for possible future
review.
      Plain error is a forfeited error that is clear or obvious and affects
defendant’s substantial rights. United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). If defendant establishes
such error, our court has discretion to correct it and, generally, will do so “only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings”. Id. (internal quotation marks and citation omitted).
      In selecting the sentence, the district court considered the Guidelines, the
§ 3553(a) factors, the facts contained in the presentence investigation report, and
De Paz’ allocution. De Paz has neither rebutted the presumption that his
within-Guidelines sentence was reasonable, see United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006), nor demonstrated any error, plain or otherwise. See
Mondragon-Santiago, 564 F.3d at 361.
      AFFIRMED.




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