     Case: 14-50619      Document: 00512870966         Page: 1    Date Filed: 12/16/2014




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

                                                                                 FILED
                                    No. 14-50619                         December 16, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS ADRIAN GARCIA-CANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-434-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jesus Adrian Garcia-Cano appeals the 10-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry
following deportation in violation of 8 U.S.C. § 1326. He argues that his
sentence is substantively unreasonable because it fails to account for his
cultural assimilation, the fact that his longest sentence prior to the instant
sentence was six months, and the fact that his motive for returning to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50619     Document: 00512870966      Page: 2    Date Filed: 12/16/2014


                                  No. 14-50619

United States was to avoid violence and to be with and support his family. He
recognizes that his argument that his within-guidelines sentence is not
entitled to a presumption of reasonableness because U.S.S.G. § 2L1.2 is not
empirically based is foreclosed by this court’s precedent, see United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009), but he wishes to preserve the
issue for Supreme Court review.
      Because Garcia-Cano did not argue in the district court that his sentence
was unreasonable, his argument is reviewable for plain error only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); see also Puckett v. United
States, 556 U.S. 129, 135 (2009). Garcia-Cano acknowledges that his failure to
object to his sentence in the district court results in the application of the plain
error standard of review, conceding that the issue is foreclosed by Peltier;
however, he notes that the circuits are divided on whether a failure to object to
the reasonableness of the sentence upon its imposition requires plain error
review, and he seeks to preserve that issue for possible review by the Supreme
Court.
      As Garcia-Cano’s sentence was within the guidelines range, a
presumption of reasonableness applies. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). The district court considered the 18 U.S.C. § 3553(a)
factors, including Garcia-Cano’s criminal history and his personal history,
before imposing the sentence.          After considering the totality of the
circumstances, see Gall v. United States, 552 U.S. 38, 51 (2007), we conclude
that Garcia-Cano has not shown that the district court erred, much less plainly
erred, in imposing his sentence. See Rita v. United States, 551 U.S. 338, 351
(2007); Peltier, 505 F.3d at 391-92; see also United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006). The judgment of the district court is AFFIRMED.



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