     Case: 14-50963       Document: 00513075311         Page: 1     Date Filed: 06/11/2015




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

                                     No. 14-50963                                  FILED
                                   Summary Calendar                            June 11, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CARLOS ROMAN OLIVA-SERRANO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:14-CR-7


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Carlos Roman Oliva-Serrano appeals the 51-month sentence imposed
following his guilty plea conviction for illegally reentering the United States
after deportation, in violation of 8 U.S.C. § 1326. He challenges only the
substantive reasonableness of the sentence, claiming it is greater than
necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a). In doing so,
and in keeping with with the claims consistently made for such appeals, he


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50963

asserts the sentence overstates the seriousness of the offense because: the
offense was essentially an international trespass; Sentencing Guideline
§ 2L1.2 (illegal-reentry provision) is not empirically based and results in the
double-counting of prior convictions; and the sentence is greater than
necessary to provide adequate deterrence and protect the public, and fails to
adequately account for his personal history and characteristics.
      Although 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, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. 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). As
noted, Oliva challenges only the substantive reasonable of his sentence.
      Although Oliva objected in district court to his sentence being greater
than necessary to satisfy the sentencing goals of § 3553(a), and supported this
by contending his alcoholism and motives for reentering the United States
warranted a sentence at the low-end of the advisory Guidelines-sentencing
range, he failed to assert the other grounds he now raises in support of his
challenge. Regardless, his sentence may be affirmed under either a plain-error
or an abuse-of-discretion standard of review.
      As in this instance, a sentence within a properly calculated Guidelines
range is presumptively reasonable. E.g., United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).    Oliva first contends the presumption should not be
applied, but he concedes this challenge is foreclosed, and raises it only for




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                                   No. 14-50963

further possible review. E.g., United States v. Duarte, 569 F.3d 528, 530-31
(5th Cir. 2009).
      Our court has likewise rejected Oliva’s international-trespass and
double-counting claims. See, e.g., United States v. Juarez-Duarte, 513 F.3d
204, 212 (5th Cir. 2008). Additionally, the sentence does not fail to “account
for a factor that should receive significant weight , . . . give[] significant weight
to an irrelevant or improper factor, or . . . represent[] a clear error of judgment
in balancing sentencing factors”. Cooks, 589 F.3d at 186. In short, Oliva’s
dissatisfaction with the district court’s weighing of the § 3553(a) sentencing
factors is insufficient to rebut the presumption of reasonableness. See, e.g.,
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.




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