     Case: 13-50563      Document: 00512658128         Page: 1    Date Filed: 06/10/2014




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


                                     No. 13-50563
                                                                              FILED
                                                                          June 10, 2014
                                   c/w No. 13-50565
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OCTAVIO MANZANARES-PUENTE, also known as Octavio Manzanares, also
known as Octavio Manzanales, also known as Octavio Manzanales-Puente,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:13-CR-162-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
       Octavio Manzanares-Puente appeals the 18-month within-guidelines
sentence imposed for his illegal reentry conviction and the consecutive 14-
month within-guidelines sentence imposed following the revocation of his
supervised release for a prior illegal reentry conviction. He contends that his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-50563    Document: 00512658128     Page: 2   Date Filed: 06/10/2014


                                 No. 13-50563
                               c/w No. 13-50565
sentences are substantively unreasonable because they were greater than
necessary to accomplish the sentencing goals under 18 U.S.C. § 3553(a).
      We review Manzanares-Puente’s arguments under the plain error
standard because he did not object in the district court to the substantive
reasonableness of his sentences. See United States v. Heard, 709 F.3d 413, 425
(5th Cir.), cert. denied, 134 S. Ct. 470 (2013); United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009). He concedes that plain error review applies
but wishes to preserve for further review the issue “whether a failure to object
to the reasonableness of a sentence upon its imposition requires plain error
review.”
      Because the sentences were within the correctly calculated guidelines
ranges, the sentences are presumptively reasonable. See United States v. Diaz
Sanchez, 714 F.3d 289, 295 (5th Cir. 2013); United States v. Lopez-Velasquez,
526 F.3d 804, 809 (5th Cir. 2008). The district court’s decision to order the
sentences to be served consecutively was consistent with the advice under the
Guidelines and is also entitled to a presumption of reasonableness.          See
U.S.S.G. § 5G1.3, comment. (n.3(C)); U.S.S.G. § 7B1.3(f), p.s.; United States v.
Candia, 454 F.3d 468, 473 (5th Cir. 2006). The presumption of reasonableness
“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.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
      Manzanares-Puente also wishes to preserve for further review the
argument that the presumption of reasonableness should not apply to within-
guidelines sentences calculated under U.S.S.G. § 2L1.2 because § 2L1.2 lacks
an empirical basis. As conceded by him, such an argument is foreclosed by our



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                                  No. 13-50563
                                c/w No. 13-50565
precedent. See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir.
2011).
      According to Manzanares-Puente, the combined 32 months of
imprisonment imposed by the district court was greater than necessary under
§ 3553(a) because guidelines calculations under § 2L1.2 lack an empirical basis
and give heavy weight to a defendant’s criminal                   history through
enhancements, such as his four-level enhancement under § 2L1.2(b)(1)(D), that
are based on prior convictions. He asserts that § 2L1.2 effectively double
counted his criminal history, as one of his prior felony convictions was, in part,
responsible for both his § 2L1.2(b)(1)(D) enhancement and his placement in
criminal history category IV. Manzanares-Puente additionally argues that his
sentences overstated the seriousness of his instant illegal reentry offense and
failed to reflect his personal history and characteristics.
      The district court listened to Manzanares-Puente’s arguments for a
lesser sentence but determined that consecutive imprisonment terms of 18 and
14 months were appropriate. “[T]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Manzanares-Puente has not shown sufficient reason to disturb the
presumption of reasonableness applicable to his sentences. See United States
v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). He has not shown that his
sentences are substantively unreasonable.
      AFFIRMED.




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