     Case: 11-50943     Document: 00511911168         Page: 1     Date Filed: 07/05/2012




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

                                                                            FILED
                                                                            July 5, 2012
                                     No. 11-50943
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MALAQUIAS FLORES-LUCAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:11-CR-5-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Malaquias Flores-Lucas appeals the sentence
imposed for his conviction for illegal reentry into the United States. His
advisory guidelines range was 46 to 57 months of imprisonment and included a
16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because he was
previously removed from the United States after having been convicted of a
crime of violence (COV), namely his 1995 Texas conviction for aggravated sexual
assault of a child.        The district court sentenced him to 57 months of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50943

imprisonment and three years of supervised release. Flores-Lucas contends that
his sentence is substantively unreasonable. He does not challenge his sentence
for procedural error.
      The substantive reasonableness of a sentence ordinarily is reviewed under
an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Flores-Lucas did not object to the substantive reasonableness of his
sentence in the district court, however, the plain error standard of review
applies. See United States v. Ruiz, 621 F.3d 390, 394, 398 (5th Cir. 2010).
Although Flores-Lucas concedes that plain error review applies under our
precedent, he wishes to preserve for further review the issue “whether a failure
to object to the reasonableness of a sentence on its imposition requires plain
error review.”
      As Flores-Lucas’s sentence was within his advisory guidelines range, his
sentence is presumptively reasonable. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).      The presumption of reasonableness “is
rebutted only on 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).
Flores-Lucas also wishes to preserve for further review the issue of whether the
presumption of reasonableness should not apply to within-guidelines sentences
calculated under § 2L1.2 because § 2L1.2 lacks an empirical basis. As conceded
by him, this issue too is foreclosed by our precedent. See United States v.
Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011).
      Flores-Lucas argues that his guidelines range was too severe because
§ 2L1.2 lacks an empirical basis, effectively double counts a defendant’s criminal
record through enhancements based on prior convictions, and fails to take into
consideration the remoteness of the prior convictions triggering those
enhancements. He notes that the predicate conviction for his COV enhancement

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                                  No. 11-50943

was not assessed any criminal history points because he was sentenced only to
probation and the conviction was more than 10 years old at the time of his
sentencing. He further contends that the guidelines range failed to reflect his
personal history and characteristics and overstated the seriousness of his instant
illegal reentry offense.
      The district court listened to Flores-Lucas’s arguments for a lesser
sentence but concluded that a sentence at the top of his guidelines range was
appropriate. “[T]he sentencing judge is in a superior position to find facts and
judge their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008). Flores-Lucas has not shown sufficient reason for us to disturb the
presumption of reasonableness applicable to his sentence. See Rodriguez, 660
F.3d at 234; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
Gomez-Herrera, 523 F.3d at 565-66. The district court’s sentence was not an
abuse of discretion, much less plainly erroneous.
      AFFIRMED.




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