     Case: 16-51140      Document: 00514030630         Page: 1    Date Filed: 06/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 16-51140
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 13, 2017
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

JUAN FRANCISCO ELIZONDO-RAMOS, also known as Juan Elizondo,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CR-385-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Juan Francisco Elizondo-Ramos appeals the sentence for his illegal
reentry offense that was at the low end of the applicable guideline range. He
argues that his sentence was substantively unreasonable and greater than
necessary to meet the goals of 18 U.S.C. § 3553(a). Elizondo-Ramos concedes
that review is for plain error under United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007), but challenges the appropriate standard of review to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51140

preserve the issue for possible review by the Supreme Court. To succeed under
the plain error standard, Elizondo-Ramos must show an error that is clear or
obvious and that affects his substantial rights, but even so, this court will
exercise its discretion to correct any error only if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (internal quotation marks and citation
omitted).
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). “A discretionary
sentence imposed within a properly calculated guidelines range is
presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008) (internal quotation marks and citation omitted); see
Rita v. United States, 551 U.S. 338, 347 (2007). Elizondo-Ramos believes that
the presumption should not be afforded to a sentence under U.S.S.G. § 2L1.2
because the guideline lacks an empirical basis. However, he recognizes that
his argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d
357 (5th Cir. 2009), and he raises it solely to preserve its further review.
      Addressing the substantive reasonableness of the sentence, Elizondo-
Ramos argues that the district court ignored the mitigating aspects of the
offense, specifically that he readily admitted his guilt when apprehended and,
having already been assaulted by gang members, returned to the United States
to save his life. The record reveals that the district court did not ignore
Elizondo-Ramos’s arguments in mitigation. Rather, it rejected them given the
lengthy nature of his criminal history.
      Insofar as Elizondo-Ramos takes issue with the “double counting” of his
Texas robbery conviction, for which he received a 16-level enhancement under



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                                 No. 16-51140

§ 2L1.2(b)(1)(A)(ii), the guideline required such counting and thus did not
render his sentence greater than necessary to meet the § 3553(a) goals. See
United States v. Hernandez-Funez, 307 F. App’x 799, 801 (5th Cir. 2009).
Finally, Elizondo-Ramos complains that the district court refused to sentence
him under, at the date of sentencing, soon-to-be amended § 2L1.2. See U.S.
SENTENCING GUIDELINES MANUAL app. C, amend. 802 (U.S. SENTENCING
COMM’N 2016). However, he has shown no plain error in that regard inasmuch
as the district court was not required to consider the amendment. See United
States v. Solis, 675 F.3d 795, 797 (5th Cir. 2012).
      AFFIRMED.




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