     Case: 14-51239       Document: 00513143908         Page: 1     Date Filed: 08/06/2015




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

                                     No. 14-51239                                   FILED
                                   Summary Calendar                            August 6, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE LUIS BRETADO-MUNIZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 2:14-CR-37


Before BARKSDALE, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Luis Bretado-Muniz challenges his 68-month sentence imposed
following his guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. He claims the presumption of reasonableness for
within Sentencing Guidelines sentences does not apply to his sentence because
Guideline § 2L1.2 (illegal-reentry) is not supported by empirical data. As
Bretado concedes, this contention is foreclosed by United States v. Mondragon-


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-51239

Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009); he presents it only to preserve
it for possible further review.
      In addition, Bretado contends his sentence is greater than necessary to
meet the sentencing goals outlined in 18 U.S.C. § 3553(a). He asserts § 2L1.2:
lacks an empirical basis; double-counts his prior drug-trafficking conviction by
using it to calculate his criminal-history score and to increase his base-offense
level; and overstates the seriousness of his unlawful-entry offense because he
did not commit a crime of violence and his offense was merely an international
trespass. Bretado also claims: his motive of illegally rentering the United
States to earn money to provide medical care for his mother mitigates the
seriousness of the offense; and the sentence was greater than necessary to
deter future criminal conduct because his motive for reentry no longer exists,
as his mother is deceased.
      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 advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 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).
      Because Bretado did not raise all of the above-described issues in district
court, review of those issues raised for the first time on appeal is only for plain
error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
Under that standard, he must show a forfeited plain (clear or obvious) error
that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the error, but should do



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                                  No. 14-51239

so only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
      Many of Bretado’s claims are foreclosed by our precedent. Our court has
rejected previous claims that § 2L1.2: lacks empirical support; double counts
a defendant’s criminal history; and overstates the seriousness of an illegal-
reentry offense. See United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir.
2009); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
      Further, for the issues presented in district court, the court considered
them but determined a 68-month sentence was appropriate. Bretado’s claims
are insufficient to rebut the presumption of reasonableness, see United States
v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008), or to show the court
abused its discretion in imposing the sentence.
      AFFIRMED.




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