     Case: 15-50268       Document: 00513329914         Page: 1     Date Filed: 01/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-50268
                                    c/w No. 15-50289
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                   Summary Calendar                              FILED
                                                                           January 5, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                  Plaintiff - Appellee

v.

JUAN CARLOS LAGOS-MEDINA,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:14-CR-378-1
                             USDC No. 1:11-CR-330-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Carlos Lagos-Medina challenges the consecutive sentences
imposed following his guilty-plea conviction for illegal reentry into the United
States after removal, in violation of 8 U.S.C. § 1326, and revocation of his prior
term of supervised release. He contends the combined 45-month sentence is



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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unreasonable because it is greater than necessary to meet the sentencing goals
of 18 U.S.C. § 3553(a).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Regarding Lagos’ claim that the 27-month sentence imposed for his
illegal-reentry offense is substantively unreasonable, the sentence is within
the advisory Guidelines sentencing range; therefore, it is entitled to a
presumption of reasonableness. E.g., United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). “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.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      As Lagos concedes, his assertion the presumption does not apply, based
on his claim Guideline § 2L1.2 is not empirically based, is foreclosed by our
court’s precedent. E.g., United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir.
2009). (He raises the issue only to preserve it for possible further review.)
Moreover, we have repeatedly rejected assertions that: double-counting of
prior convictions necessarily renders a sentence unreasonable; and, the



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                                 No. 15-50268
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Guidelines overstate the seriousness of illegal reentry. E.g., id. at 529–30;
United States v. Aguirre-Villa, 460 F.3d 681, 682–83 (5th Cir. 2006).
      Additionally, Lagos’ contention he returned to the United States because
he faced extortion and violent treatment in Honduras and Mexico was
considered by the district court and addressed at sentencing. “[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). Accordingly, Lagos’ assertions
are insufficient to rebut the presumption of reasonableness.
      For Lagos’ challenge to the 18-month sentence imposed for revocation of
his supervised release, such sentences are reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843
(5th Cir. 2011). Because the sentence fell within the advisory range, and was
consistent with Guidelines policy regarding consecutive sentences, it is entitled
to a presumption of reasonableness.        See, e.g., United States v. Lopez-
Velasquez, 526 F.3d 804, 809 (5th Cir. 2008); U.S.S.G. § 7B1.1(a)(2); U.S.S.G.
§ 7B1.4; U.S.S.G. Ch. 7, Pt. B, intro. comment. As with his challenge to his
sentence for illegal reentry, Lagos’ claim that the revocation sentence was
greater than necessary to meet the goals of § 3553(a), similarly fails to rebut
the presumption of reasonableness. See Lopez-Velasquez, 526 F.3d at 808–09.
      AFFIRMED.




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