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

                                                 FILED
                                                                         December 30, 2009
                                     No. 09-40467
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSCAR TRUJILLO URBINA, also known as Oscar Trujillo,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1218-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Oscar Trujillo Urbina pleaded guilty to an indictment charging him with
illegal reentry into the United States after deportation. Urbina did not object
to the presentence report, but he requested a sentence below the Sentencing
Guidelines range. The district court rejected the request and sentenced Urbina
to 51 months in prison and a three-year term of supervised release.
       On appeal, Urbina argues that the district court plainly erred procedurally
by sentencing him based on facts that were not supported by the record. Urbina

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-40467

also argues that his within-Guidelines sentence is unreasonable because it is
greater than necessary to achieve the aims of 18 U.S.C. § 3553(a).
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). The court first
examines whether the district court committed any procedural errors, “such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). If there is no
such error or the error is harmless, the reviewing court may proceed to the
second step and consider the substantive reasonableness of the sentence imposed
for an abuse of discretion. United States v. Delgado-Martinez, 564 F.3d 750, 751
(5th Cir. 2009). “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006).
      Urbina argues that the district court based his sentence on factual findings
not supported by the record. Urbina did not object to these findings in the
district court. “A party must raise a claim of error with the district court in such
a manner so that the district court may correct itself and thus, obviate the need
for our review.” United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir.) (citation and quotation marks omitted), cert. denied, 130 S. Ct. 192 (2009).
Urbina concedes that, when no objection is made, this court reviews the adequacy
of the district court’s explanation of its sentence for plain error only; however, in
light of a circuit split, he preserves the issue for future review.
      Urbina urges that, in addressing his request for a sentence below the
Guidelines range, the district court made two findings that were not supported
by the record. The first was that Urbina said that he would not continue to have

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sex with the 15 year old girl that was the victim in the statutory rape case. The
second is the duration of time in which Urbina continued to have illicit sexual
relations with the girl when at some point during the relationship the girl
necessarily reached the age of consent and the sexual activity was no longer
illicit. Although Urbina argues as if these findings were false, they are not
refuted by the record and present questions of fact rather than demonstrable
errors of fact. “Questions of fact capable of resolution by the district court upon
proper objection at sentencing can never constitute plain error.” United States
v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Urbina’s arguments with respect to
whether he lied to the victim’s mother and the length of the illegal sexual activity
could have been resolved by the district court if Urbina had properly raised the
issue by either objecting to the findings or presenting evidence at sentencing to
rebut the findings. Because Urbina did not object in the district court and there
is no specific evidence in the record addressing either of the allegedly erroneous
findings, Urbina cannot show plain error.
      With respect to the argument that the sentence is substantively
unreasonable, Urbina contends that the presumption of reasonableness that
ordinarily attaches to a within-guidelines sentence on appellate review should
not apply in his case because the Guideline under which he was sentenced is not
empirically supported. He acknowledges that his argument is foreclosed by this
court’s precedent; however, he raises the issue to preserve it for possible Supreme
Court review. Accordingly, we presume that Urbina’s within-Guidelines sentence
is reasonable. See Alonzo, 435 F.3d at 554.
      Urbina’s arguments are focused on a comparison between his current
sentence and the sentence imposed in the state statutory rape case. Although the
numerical assertions are certainly true, they do not address whether the 51-
month sentence is appropriate for an illegal reentry that occurred only two to
three months following the original deportation. The record shows that it was
Urbina’s rapid return to the United States following his deportation and his lack

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of respect for the law that caused the district court to conclude that he would
likely return again, notwithstanding the instant conviction. Given that Urbina
does not dispute the findings based on the record that he repeatedly committed
offenses knowing that his actions were illegal, he cannot show that the district
court abused its discretion in sentencing him within the recommended Guidelines
range.
      AFFIRMED.




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