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

                                                FILED
                                                                 December 17, 2009
                                 No. 09-50363
                               Consolidated with             Charles R. Fulbruge III
                                 No. 09-50507                        Clerk
                              Summary Calendar


UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

JOSE ANTONIO PINEDO-URENO,

                                            Defendant-Appellant


                 Appeals from the United States District Court
                       for the Western District of Texas
                           USDC No. 3:08-CR-3270-1
                           USDC No. 3:05-CR-457-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
      Jose Antonio Pinedo-Ureno appeals the 70-month sentence imposed
following his guilty plea conviction for illegal reentry into the United States,
arguing that it is substantively unreasonable. He asserts that his sentence is
greater than necessary to satisfy the factors in 18 U.S.C. § 3553(a); the advisory



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                 No. 09-50363 c/w
                                  No. 09-50507

guidelines range calculated pursuant to U.S.S.G. § 2L1.2 overstated the
seriousness of his offense; and the guidelines range failed to take into account
his personal history and characteristics, including that he returned to the United
States to see his mother, who is seriously ill, and his young daughter.
      Although Pinedo-Ureno asked for a sentence below the guidelines range,
he did not object to the sentence as unreasonable. Therefore, Pinedo-Ureno’s
sentence   is   subject   to   plain   error   review.      See   United   States   v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert. denied, 2009 WL
1849974 (Oct. 5, 2009) (No. 08-11099). To show plain error, the defendant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the defendant
makes such a showing, this court has the discretion to correct the error but only
if it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id.
      The district court heard the arguments of Pinedo-Ureno’s counsel for a
sentence below the guidelines range and allowed Pinedo-Ureno to provide an
explanation for his conduct.      The district court stated that it understood
Pinedo-Ureno had family here but that was not a defense; Pinedo-Ureno had a
prior illegal reentry conviction for which he was sentenced to 32 months of
imprisonment and had previously been warned that he would receive a longer
sentence if he returned to the United States illegally. In addition, the district
court explained that it had considered the particular circumstances of this case,
the goals of the Sentencing Guidelines, and the factors in § 3553(a). The district
court’s comments reflect its familiarity with Pinedo-Ureno’s personal history and
the nature of his prior offenses and the need to deter Pinedo-Ureno from
reentering the United States illegally again.            Because the district court
considered Pinedo-Ureno’s arguments for a sentence below the guidelines range,
its rejection of the request for a non-guidelines sentence was not error, much less


                                          2
                                No. 09-50363 c/w
                                 No. 09-50507

plain error. See Puckett, 129 S. Ct. at 1429; United States v. Gomez-Herrera, 523
F.3d 554, 565 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      Pinedo-Ureno argues in addition that the district court improperly double-
counted his prior conviction for importation of marijuana to increase his offense
level and to calculate his criminal history. He asserts that the presumption of
reasonableness should not apply because § 2L1.2 is without an empirical basis.
As he acknowledges, these arguments are foreclosed by this court’s precedent.
See United States v. Mondragon-Santiago, 564 F.3d357, 366 (5th Cir. 2009)
(holding that an appellate presumption of reasonableness can be applied “[e]ven
if the Guidelines are not empirically-grounded.”); see also United States v.
Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009) (rejecting double counting
argument), cert. denied, 2009 WL 3162196 (Oct 5, 2009) (No. 09-6195).
Pinedo-Ureno has not shown that his within-guidelines sentence should not be
accorded the presumption of reasonableness. See Gall v. United States, 552 U.S.
38, 51 (2007).
      Pinedo-Ureno has also appealed the revocation of his supervised release
and 13-month sentence imposed following revocation. However, because he does
not challenge the supervised release revocation or the sentence in his appellate
brief, he has abandoned any challenge to the supervised release revocation on
appeal. See United States v. Flores, 63 F.3d 1342, 1374 n.36 (5th Cir. 1995).
      AFFIRMED.




                                        3
