     Case: 18-50378       Document: 00514817826         Page: 1     Date Filed: 01/31/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 18-50378                      United States Court of Appeals

                                   Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                        January 31, 2019

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                                                  Plaintiff-Appellee

v.

ANGEL ANTONIO LUNA-FLORES, also known as Anthony Angel Esparza,
also known as Angel Anthony Luna Flores,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:17-CR-2110-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Angel Antonio Luna-Flores appeals the sentence of 37-months’
imprisonment imposed following his guilty plea for illegal reentry into the
United States in violation of 8 U.S.C. § 1326. He contends his sentence was
greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and
violates due process.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-50378

         Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Where, as here, the district court imposes a sentence within a properly
calculated advisory Guidelines sentencing range, the sentence is entitled to a
rebuttable presumption of reasonableness. United States v. Rashad, 687 F.3d
637, 644 (5th Cir. 2012). Luna challenges the presumption being accorded a
sentence under Guideline § 2L1.2, asserting it lacks an empirical basis. He
concedes his claim is foreclosed by our precedent, and presents it solely to
preserve it for possible further review. See United States v. Duarte, 569 F.3d
528, 529–31 (5th Cir. 2009).
      Our court has previously rejected the contention, now made by Luna,
that the illegal reentry Guideline renders his sentence unreasonable because
it impermissibly double counts his criminal history. Id. The same is true for
his assertion that the Guidelines overstate the seriousness of illegal reentry
because it is simply an international-trespass offense. United States v. Juarez-
Duarte, 513 F.3d 204, 212 (5th Cir. 2008). Luna’s contention that his benign
motives for returning to the United States warranted a lesser sentence is also
unavailing. United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir.
2008).



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                                No. 18-50378

      The district court made an individualized assessment of the sentencing
factors, including the mitigating circumstances presented by Luna, and
determined a Guidelines sentence was appropriate.        Needless to say, the
district court was in “a superior position to find facts” and evaluate their
importance under the 18 U.S.C. § 3553(a) sentencing factors, and we will not
reweigh its assessment of them. See Gall, 552 U.S. at 51–52 (citation omitted).
In short, Luna fails to rebut the presumption of reasonableness applicable to
his Guidelines-range sentence. See Rashad, 687 F.3d at 644; United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013), Luna also claims the statutory maximum
sentence under 8 U.S.C. § 1326(b)(1) is inapplicable because his indictment did
not allege any prior felony conviction. As he concedes, however, the issue is
foreclosed; he presents the issue solely to preserve it for possible further
review. United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United
States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).
      AFFIRMED.




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