     Case: 09-50663     Document: 00511064156          Page: 1    Date Filed: 03/26/2010




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

                                                  FILED
                                                                           March 26, 2010
                                     No. 09-50663
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN DE DIOS PEREZ-GARCIA, also known as Juan Perez-Garcia,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-701-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*


        Juan de Dios Perez-Garcia challenges the 21-month sentence imposed
subsequent to his guilty plea to attempted illegal reentry following deportation,
in violation of 8 U.S.C. § 1326. Perez contends his sentence is unreasonable
because: it overstates the seriousness of the offense of conviction; and, it fails




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50663    Document: 00511064156 Page: 2         Date Filed: 03/26/2010
                                 No. 09-50663

to account for his personal history and circumstances, namely, his family-related
motives for reentering the United States.
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory guideline sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 51 (2007). The sentence was within that range (within-guidelines
sentence).
      Had Perez timely objected to the reasonableness of his within-guidelines
sentence, review would be for abuse-of discretion. Gall, 552 U.S. at 51. Perez,
however, did not raise such an objection, although he did request a sentence at
the low end of the sentencing range. Accordingly, the Government contends
review is for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). Perez maintains that, despite Peltier’s holding to the contrary, he
was not required to object to the sentence based on reasonableness because
Peltier is contrary to our prior plain-error precedent.         Specifically, Perez
contends Peltier is a nullity under our rule of orderliness because it conflicts with
United States v. Castillo, 430 F.3d 230 (5th Cir. 2005).
      In Castillo, the district court downwardly departed based on Guideline
§ 5K2.0 (other grounds for departure) because the prosecutor revealed the
defendant’s HIV status, which had been under seal, in open court at sentencing.
Id. at 241-43.   After berating the prosecutor, the district court sua sponte
downwardly departed. Id. at 242-43. The Government did not object to this
downward departure but raised it as error on appeal. Id. at 241.          Our court
considered whether plain-error review applied and concluded, “under the unique
set of circumstances presented by this case, the [G]overnment did not waive its
objection . . . by failing to object formally to it at sentencing”.      Id. at 243
(emphasis added).



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                                  No. 09-50663

      We see no conflict between Peltier and Castillo. The latter is obviously
limited to its facts, which are in no way similar to the facts presented by the
instant action. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009) (rejecting similar contention that Peltier should not be followed under the
rule of orderliness). Therefore, review is for plain error. Peltier, 505 F.3d at 391-
92; see also United States v. Mondragon-Santiago, 564 F.3d 357, 361 n.2 (5th Cir.
2009) (“We note a circuit split on the issue of whether a defendant must object
at sentencing to preserve error on appeal. Peltier has settled this issue in our
circuit . . . .” (internal citation omitted)).
      Because the district court imposed a sentence within a properly calculated
guidelines sentencing range, it is presumptively reasonable. E.g., United States
v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008); see also Rita v. United States, 551 U.S. 338, 347 (2007). Perez’ assertion
that his sentence is substantively unreasonable in the light of the non-serious
nature of the offense of conviction and his family-related motives for reentering
the United States is insufficient to overcome the presumption of reasonableness
afforded his within-guidelines sentence. See, e.g., United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009), petition for cert. filed (19 Feb. 2010) (No. 09-9216);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008). Therefore, there is no error, plain or otherwise.
      Perez contends the presumption of reasonableness should not apply in his
case because Guideline § 2L1.2 (unlawfully entering or remaining in the United
States), the guideline under which he was sentenced, is not empirically
supported. Perez correctly concedes, however, that this contention is foreclosed
by United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009), and United States v. Duarte, 569 F.3d 528, 529-31
(5th Cir.), cert. denied, 130 S. Ct. 378 (2009). He raises it only to preserve it for
possible further review.
      AFFIRMED.

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