     Case: 13-50519      Document: 00512548201         Page: 1    Date Filed: 02/28/2014




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

                                    No. 13-50519                              FILED
                                  Summary Calendar                     February 28, 2014
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAYMUNDO FONSECA-TREVINO, also known as Raymond Trevino
Fonseca, also known as Ray Trevino, also known as Raymond Fonseca, also
known as Raymond Trevino, also known as Raymond T., also known as Ray
Fonseca,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:12-CR-871-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Raymundo Fonseca-Trevino (Fonseca) pleaded guilty to illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a), (b)(2). The district
court sentenced him to 27 months in prison, which was at the bottom of his
advisory guidelines range of imprisonment. Fonseca argues that his 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 13-50519

is unreasonable because it is greater than necessary to accomplish the
sentencing goals set forth in 18 U.S.C. § 3553(a).
      Fonseca did not present this argument in the district court. Thus, our
review is for plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007). Although Fonseca challenges the application of the plain error
standard, he concedes that his argument is foreclosed. See id. To show plain
error, the appellant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If the appellant makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      First, we have consistently rejected Fonseca’s argument that U.S.S.G.
§ 2L1.2 results in an excessive sentence because it is not empirically based.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). Second, the
record reflects that the district court considered the advisory guidelines range
of imprisonment, Fonseca’s arguments for a more lenient sentence, Fonseca’s
statements in allocution, and the § 3553(a) factors before determining that the
advisory guidelines range of imprisonment was fair and reasonable.              The
record thus reflects that the district court made an individualized
determination at sentencing based on the facts presented and in light of the
§ 3553(a) factors. See Gall v. United States, 552 U.S. 38, 50 (2007).
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007). Fonseca
has not shown that the district court failed to give proper weight to his
arguments or to any particular § 3553(a) factor. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). He has failed to rebut the presumption of



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                                No. 13-50519

reasonableness that attaches to his within-guidelines sentence, see Alonzo, 435
F.3d at 554-55, and he has not shown that the district court erred, plainly or
otherwise, see Puckett, 556 U.S. at 135; United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
      Accordingly, the district court’s judgment is AFFIRMED.




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