     Case: 13-50737      Document: 00512609620         Page: 1    Date Filed: 04/28/2014




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

                                                                                FILED
                                    No. 13-50737                            April 28, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ALBERTO VALLEJO-LUNA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1536-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Alberto Vallejo-Luna (Vallejo) appeals the 41-month within-
guidelines sentence imposed following his conviction for illegal reentry into the
United States after having been deported. He concedes that sentences imposed
within the Guidelines are presumptively reasonable but argues that he has
rebutted the presumption because the district court made a clear error of
judgment in balancing the 18 U.S.C. § 3553 factors and imposed a 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50737    Document: 00512609620     Page: 2   Date Filed: 04/28/2014


                                 No. 13-50737

that was greater than necessary to meet those factors. He contends that his
sentence overstated the seriousness of his illegal reentry offense because, in
applying U.S.S.G. § 2L1.2, the district court gave too much weight to old
convictions. He argues further that the district court failed to give proper
weight to his beneficent reason for re-entering the country unlawfully or to the
likelihood that he will not recidivate. Vallejo also argues that the presumption
of reasonableness should not apply to his sentence because § 2L1.2 is not
supported by empirical data, but he concedes that this argument is foreclosed
by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      Vallejo acknowledges that this court reviews for plain error when a
defendant fails to object to the reasonableness of the sentence but contends
that it should review for an abuse of discretion. Because he did not object to
the substantive reasonableness of the sentence in the district court, review is
limited to plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).
      The district court considered Vallejo’s request for a sentence at the
bottom of the guidelines range and ultimately determined that a sentence in
the middle of the range was appropriate under the circumstances and the
§ 3553(a) factors. Vallejo’s arguments that that § 2L1.2 lacks an empirical
basis and that his sentence overstates the seriousness of his criminal history
and fails to take into account his personal history and characteristics are
insufficient to rebut the presumption of reasonableness. See United States v.
Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Vallejo has failed to
show that his 41-month within-guidelines sentence is substantively
unreasonable, and there is no reversible plain error.
      AFFIRMED.



                                       2
