     Case: 18-40974      Document: 00515057446          Page: 1   Date Filed: 07/31/2019




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

                                                                                FILED
                                    No. 18-40974                            July 31, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff-Appellee

v.

SERGIO LAGUNES-ORTEGA,

              Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:17-CR-1572-1


Before REAVLEY, JONES, and HO, Circuit Judges.
PER CURIAM: *
       Sergio    Lagunes-Ortega        appeals    the    45-month      within-guidelines
sentence imposed following his bench trial conviction of being found in the
United States after previous deportation. He argues that the sentence is
substantively unreasonable because it is greater than necessary to meet the
18 U.S.C. § 3553(a) sentencing goals.             Specifically, he asserts that the
Guidelines overrepresented his criminal history because his prior convictions


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40974

of money laundering and conspiracy to possess with intent to distribute more
than 100 kilograms of marijuana were scored separately but arose out of the
same course of conduct. Further, he contends that the district court made an
unfounded assumption that he was likely to return to this country in the
future.
      We generally “review the substantive reasonableness of a sentence for
abuse of discretion under the totality of the circumstances.” United States v.
Heard, 709 F.3d 413, 425 (5th Cir. 2013). A sentence imposed within a properly
calculated guidelines range is presumptively reasonable. Id. at 424. “The
presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” Id. (internal quotation marks and
citation omitted).
      Although Lagunes-Ortega contends that he preserved the issues he now
raises by asserting at sentencing that criminal history category IV
overrepresented the seriousness of his criminal history and that a sentence
below the guidelines range would be sufficient to meet the sentencing goals of
§ 3553(a), he did not object to the substantive reasonableness of the sentence
after the district court imposed the sentence as is required in this circuit.
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). 1 “To preserve error, an objection
must be sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v.

      1  The Supreme Court’s grant of certiorari in Holguin-Hernandez v. United States,
No. 18-7739, 2019 WL 429919 (U.S. June 3, 2019) does not disturb our precedent. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008) (This court’s precedent
remains binding absent an intervening Supreme Court or an en banc decision of this court
despite a grant of certiorari.).


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                                 No. 18-40974

Neal, 578 F.3d 270, 272 (5th Cir. 2009).        Lagunes-Ortega’s argument at
sentencing that his criminal history was overrepresented preserved his
reasonableness arguments on appeal involving the overrepresentation of his
criminal history. United States v. Gomez-Herrera, 523 F.3d 554, 565 n.6 (5th
Cir. 2008).   However, the objection did not preserve all of his appellate
arguments, including that the district court made an unfounded assumption
that he was likely to return to this country in the future. In any event, we need
not decide whether to apply plain-error review because Lagunes-Ortega’s
substantive reasonableness challenge fails even under the ordinary standard
of review. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010)
(declining to decide standard of review and applying more lenient standard).
      The district court considered the parties’ arguments, Lagunes-Ortega’s
allocution, the Presentence Report, the advisory guidelines range, and the
§ 3553(a) sentencing factors. The district court stated it correctly determined
that Lagunes-Ortega was not a citizen of the United States, but it did not think
he would ever accept that fact. For that reason, the court was concerned that
Lagunes-Ortega was likely to reenter the United States in the future. In
addition, the court stated that it considered Lagunes-Ortega’s argument
concerning his criminal history and it was not sure that his prior offenses were
completely distinct offenses; however, the court believed that the guidelines
range was properly calculated and that his criminal history was not
overrepresented. Lagunes-Ortega’s within-guidelines sentence is entitled to a
presumption of reasonableness. See Heard, 709 F.3d at 424. Lagunes-Ortega’s
disagreement with the district court’s weighing of the sentencing factors is
insufficient to rebut that presumption. See Ruiz, 621 F.3d at 398. He has not
shown that the district court failed to give proper weight to his arguments or
any particular § 3553(a) factor. See Heard, 709 F.3d at 424.



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                                No. 18-40974

      Finally, Lagunes-Ortega contends that the sentence overstated the
seriousness of the offense, which was merely an international trespass; the
applicable guidelines provision did not have an empirical basis; and the
guidelines provision double-counted his prior convictions.       He correctly
acknowledges that these arguments are foreclosed by our precedent and raises
the issues to preserve them for possible further review. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Mondragon-
Santiago, 564 F.3d 357, 367 (5th Cir. 2009); United States v. Juarez-Duarte,
513 F.3d 204, 212 (5th Cir. 2008).
      Therefore, the district court’s judgment is AFFIRMED.




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