     Case: 17-51048       Document: 00514747258         Page: 1     Date Filed: 12/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 17-51048                      United States Court of Appeals

                                   Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                       December 4, 2018

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                                                  Plaintiff - Appellee

v.

JORGE ADALBERTO GUZMAN-CRUZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:17-CR-161-1


Before BARKSDALE, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Jorge Adalberto Guzman-Cruz appeals his 71-month sentence, which is
within the advisory Sentencing Guidelines sentencing range, and was imposed
following his guilty plea to illegally reentering the United States following
removal, in violation of 8 U.S.C. § 1326. He contends his mid-sentencing-range
sentence calculated under Guideline § 2L1.2 (offense-level calculation for
unlawfully entering or remaining in the United States) was greater than


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-51048

necessary to meet the sentencing objectives of 18 U.S.C. § 3553(a), and,
therefore, his sentence is substantively unreasonable.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence, as in this instance, is reviewed for
substantive reasonableness under an abuse-of-discretion standard. Id. at 51;
United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). 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).
      Our court ordinarily applies a presumption of reasonableness to a
within-Guidelines sentence.     Gall, 552 U.S. at 51.     That presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, gives weight to an irrelevant or
improper factor, or represents a clear error in judgment in balancing the
sentencing factors. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009) (citation omitted).
      Guzman contends the district court’s application of Guideline § 2L1.2
renders his sentence unreasonable because it: gave disproportionate weight to
his prior convictions in determining both his total offense level and criminal-
history category; gave consideration to stale convictions; and overstated the
seriousness of his non-violent reentry offense.      Our court has repeatedly
rejected these contentions as a basis for rebutting the presumption of
reasonableness accorded a within-Guidelines sentence. See, e.g., United States
v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011) (holding staleness of prior



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                                 No. 17-51048

conviction used in proper calculation of Guidelines-range sentence does not
destroy presumption of reasonableness); United States v. Duarte, 569 F.3d 528,
529–31 (5th Cir. 2009) (applying presumption despite contention the Guideline
results in double counting prior convictions); United States v. Juarez-Duarte,
513 F.3d 204, 212 (5th Cir. 2008) (applying presumption despite assertion the
Guideline overstates the seriousness of a non-violent illegal-reentry offense).
      Guzman also contends the court failed to consider his personal
characteristics and criminal history; but, the court considered the presentence
investigation report, defense counsel’s urged mitigating bases, Guzman’s
allocution, and the Government’s position on the sentence. The court properly
made an individualized assessment, based on the facts and circumstances of
the case, and determined a within-Guidelines sentence was sufficient, but not
greater than necessary, to achieve the goals of 18 U.S.C. § 3553(a). See Gall,
552 U.S. at 49–50.      Guzman’s contentions amount to no more than a
disagreement with the court’s weighing of the 18 U.S.C. § 3553(a) factors,
which is insufficient to rebut the presumption of reasonableness that attaches
to his within-Guidelines sentence. See United States v. Gomez-Herrera, 523
F.3d 554, 565–66 (5th Cir. 2008).
      AFFIRMED.




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