     Case: 13-10454      Document: 00512530397         Page: 1    Date Filed: 02/12/2014




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

                                                                               FILED
                                    No. 13-10454                        February 12, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

OMAR CORREA-HUERTA,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-229-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Omar Correa-Huerta challenges the 71-month sentence imposed
following his guilty-plea conviction for illegal reentry (2008) following
deportation (2007). Correa contends his sentence is substantively unreason-
able because it is the product of provisions in the advisory Sentencing
Guidelines that lead to unwarranted sentencing outcomes.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10454

      Specifically, he disagrees with the application of certain Guidelines
provisions, which increase defendant’s criminal-history category for prior
sentences imposed within ten years of the commencement of defendant’s
instant offense. See U.S.S.G. §§ 4A1.1, cmt. 2 (Criminal History Category),
4A1.2(e)(2) (Definitions and Instructions for Computing Criminal History).
Correa maintains his six-month sentence from 23 February 1998, for a
controlled-substance offense, would not have resulted in the imposition of
criminal-history points had the ten-year period been measured from the date
of sentencing on the instant offense (April 2013) rather than from the date of
his illegal reentry (2008). According to Correa, it is irrational to subject illegal-
reentry defendants who live in the United States without incident—as he
claims he did from 2008 to 2012—to a longer look-back period than those who
engage immediately in criminal activity upon their return to the United States.
      Although post-Booker, the 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 Guideline-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 the 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). Correa does not claim procedural
error; he maintains only that his sentence is substantively unreasonable.
      He did not, however, object to his sentence in district court; rather, he
requested a lesser sentence than ultimately imposed. As he concedes, under
this court’s precedent, his failure to object results in only plain-error review.
See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). Correa notes,



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                                  No. 13-10454

however, the circuits are divided on whether defendant must object specifically
to his sentence to preserve error, and he wishes to preserve the issue for
possible further review.
      Under the plain-error standard, Correa must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). Even if he shows such reversible plain error, we have
the discretion to correct the error, but should do so only if it seriously affects
the fairness, integrity, or public reputation of the proceedings. See id. Correa’s
challenge to his sentence based on the calculation of his criminal history
category fails.
      “Where a deported alien enters the United States and remains here with
the knowledge that his entry is illegal, his remaining here until he is ‘found’ is
a continuing offense”. United States v. Santana-Castellano, 74 F.3d 593, 598
(5th Cir. 1996) (citation omitted). In a recent unpublished opinion, a panel of
this court upheld a sentence for illegal reentry under similar facts. United
States v. Munoz-Garcia, 533 F. App’x 364, 366 (5th Cir. 2013) (citing Santana-
Castellano in upholding sentence under de novo review where appellant
contended date of arrest, rather than reentry six years earlier, made
application of enhancement improper).          Although Munoz-Garcia is not
precedential, we find its reasoning persuasive and directly on point.
      “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”        United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). Correa can
rebut the presumption of reasonableness by “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



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                                 No. 13-10454

F.3d 173, 186 (5th Cir. 2009) (citation omitted). His disagreement with the
assignment of criminal-history points for prior convictions is insufficient to
demonstrate    that   the   within-Guidelines   sentence    was    substantively
unreasonable; restated, the district court did not plainly err in imposing it.
See, e.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008);
United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
      AFFIRMED.




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