   Case: 11-50281       Document: 00511711181         Page: 1     Date Filed: 12/30/2011




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

                                                                            FILED
                                                                        December 30, 2011
                                     No. 11-50281
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

HERIBERTO MARQUEZ-MURILLO, Also Known as Jose Marquez,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               No. 3:10-CR-3066-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Heriberto Marquez-Murillo appeals the 57-month sentence for his guilty-
plea conviction of illegal reentry after deportation in violation of 8 U.S.C. § 1326.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50281

He argues that his sentence, which was within the applicable guidelines range
of 57 to 71 months, is procedurally and substantively unreasonable because the
district court relied on erroneous factfinding. He maintains that the court
wrongly concluded that his criminal history score was based primarily on convic-
tions for assaults against women. He claims that his criminal history consisted
primarily of minor traffic offenses, and the court’s mistaken belief caused it to
deny his request for a downward variance.
      Marquez-Murillo did not assert in the district court that his sentence was
procedurally unreasonable as a result of erroneous factrfinding. Thus, review
is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To establish plain error, Marquez-Murillo must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this
court has the discretion to correct the error, but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      To the extent that the court, at sentencing, made remarks implying that
Marquez-Murillo was placed in criminal history category IV because “most” of
his scored convictions involved assaults against women, that finding appears to
be erroneous. The record supports that only one of the nine criminal history
points was attributable to an assault against a woman, and only three criminal
history points were assigned for assaultive offenses. Thus, although Marquez-
Murillo’s criminal history indicates that he has repeatedly engaged in assaultive
behavior, those offenses did not contribute overwhelmingly to his criminal his-
tory score.
      Nevertheless, the number of assaultive offenses that Marquez-Murillo
committedSSeither against women or in totalSSis a question of fact; the deter-
mination of the extent to which assaultive offenses contributed to the calculation
of the criminal history does not involve legal analysis but only a simple numeri-
cal comparison of his assaultive and non-assaultive offenses. “For a fact issue

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                                  No. 11-50281

to be properly asserted as plain error on appeal, it must be one arising outside
of the district court’s power to resolve.” United States v. Alvarado-Saldivar, 62
F.3d 697, 700 (5th Cir. 1995). Marquez-Murillo’s challenge to the district court’s
perception of his criminal history as being comprised primarily of assaultive
offenses against women could easily have been resolved if he had objected.
Because he did not, he cannot show plain error in connection with the characteri-
zation of his criminal history. See United States v. Lopez, 923 F.2d 47, 50 (5th
Cir. 1991) (“Questions of fact capable of resolution by the district court upon
proper objection at sentencing can never constitute plain error.”).
      Even if Marquez-Murillo could establish that the characterization of his
criminal history constituted clear and obvious error, he has not shown that the
error affected his substantial rights: He has not demonstrated a reasonable
probability that, but for the error, he would have received a lower sentence. See
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). Though Marquez-
Murillo asserts that the court’s decision not to vary downwardly from the advis-
ory guidelines range was based on its erroneous factfinding, the record does not
support that conclusion. There is no evidence that, if not for its incorrect percep-
tion that Marquez-Murillo’s criminal history was comprised “mostly” of assaults
against women, the court would have opted to vary downwardly from the advis-
ory guideline range. Accordingly Marquez-Murillo has not shown that the court
committed reversible plain error with respect to its perception of his criminal
history.
      Marquez-Murillo argues that his sentence was substantively unreasonable
because it was greater than necessary to accomplish the goals of sentencingSS
deterring future crime and protecting the publicSSbecause it is disproportionate
to the severity of his offense. He further asserts that his within-guidelines sen-
tence does not reflect his personal history and characteristics, because it does not
account for his benign motive for reentering the United States. To the extent
that he also asserts that we should not apply a presumption of reasonableness

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                                  No. 11-50281

to his sentence because U.S.S.G. § 2L1.2 is not empirically based and effectively
double-counts his criminal history, those arguments are foreclosed. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      The record supports that the district court made an individualized sen-
tencing decision based on the facts in light of 18 U.S.C. § 3553(a). See Gall v.
United States, 552 U.S. 38, 49-50 (2007). The court’s conclusion that a within-
guidelines sentence is appropriate is entitled to deference, and we presume that
it is reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006);
Rita v. United States, 551 U.S. 338, 347 (2007). The district court was in a
superior position to find facts and assess their import under § 3553(a), Gall, 552
U.S. at 49-50, and we see no reason to disturb the discretionary decision to
impose a sentence within the guideline range. Marquez-Murillo’s disagreement
does not suffice to rebut the presumption of reasonableness that attaches to a
within-guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008).
      AFFIRMED.




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