     Case: 12-50697       Document: 00512295916         Page: 1     Date Filed: 07/03/2013




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

                                                                            FILED
                                                                            July 3, 2013
                                     No. 12-50697
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE HERNAN SERVELLON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:11-CR-2107-1


Before BENAVIDES, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Hernan Servellon filed a pro se notice of appeal from “the final
Judgment in a Criminal Case entered in this action on the 3rd day of July, 2012,
and filed on July 6, 2012.” In his brief, Servellon complains about the sentence
imposed for his conviction for the offense of illegal reentry following deportation,
8 U.S.C. § 1326(a), (b)(2), and the sentence imposed for revocation of supervised
release, 18 U.S.C. § 3583(e)(3) (USDC No. 2:12-CR-532). The sentences were
imposed after a joint hearing on both his illegal reentry case and his revocation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50697

of supervised release case. We liberally construe his notice of appeal and
address the challenges Servellon raises to both his illegal reentry sentence and
his revocation sentence in No. 2:12-CR-532. See United States v. Knowles, 29
F.3d 947, 949 (5th Cir. 1994); Trust Co. Bank v. United States Gypsum Co., 950
F.2d 1144, 1148 (5th Cir. 1992).
      The district court sentenced Servellon to a 50-month term of imprisonment
following his guilty plea to illegal reentry of a deported alien. See 8 U.S.C.
§ 1326. He argues that the sentence, which is in the middle of the advisory
guidelines range, is substantively unreasonable because it is greater than
necessary to accomplish the goals of sentencing set forth in 18 U.S.C. § 3553(a).
      Servellon 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 Servellon 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.
      We have consistently rejected Servellon’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). We also have rejected the
“double counting” and “international trespass” arguments that he asserts. See
id.; United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Servellon contends that the § 2L1.2 Guideline resulted in an advisory
guidelines range that overstated the seriousness of his offense of conviction and
failed to account for his benign motives for returning to the United States. At
sentencing, the district court considered the advisory guidelines range;
Servellon’s request for a sentence at the low end of the advisory guidelines

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range; Servellon’s statement in allocution; and the factors identified in § 3553.
The district court determined that a 50-month sentence was appropriate. 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); Rita v. United States, 551 U.S. 338, 347 (2007). Servellon 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 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 plainly erred. See Puckett, 556 U.S. at
135; United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      The district court sentenced Servellon to a consecutive 10-month sentence
following the revocation of his supervised release. See 18 U.S.C. § 3583(e)(3).
He argues that the district court committed procedural error by failing to
adequately explain it, and he asserts that the consecutive nature of the sentence
renders it substantively unreasonable. Servellon did not object in the district
court. Our review is for plain error. See United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009).
      Because the 10-month sentence was within the range recommended by the
policy statements and within the statutory maximum term of imprisonment that
the district court could have imposed, see § 3583(e)(3); U.S.S.G. § 7B1.4(a), the
district court was not required to provide a lengthy explanation. See Rita, 551
U.S. at 356. The district court considered the parties’ arguments and had a
reasoned basis for choosing the 10-month sentence. See id. Servellon fails to
show that a further explanation would have resulted in a lesser sentence. He
thus fails to show that error, if any, affected his substantial rights. See United

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States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Finally, we
have repeatedly upheld as reasonable within-guidelines revocation sentences
ordered to run consecutively to the sentence for the criminal offense leading to
the revocation. United States v. Ramirez, 264 F. App’x 454, 458-59 (5th Cir.
2008) (collecting cases). Servellon has not shown plain error. See Whitelaw, 580
F.3d at 259-60.
      Accordingly, the district court’s judgment is AFFIRMED.




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