     Case: 15-50171    Document: 00513260362   Page: 1   Date Filed: 11/05/2015




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

                                                                       FILED
                               No. 15-50171                     November 5, 2015
                             Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JOSE JESUS OLVERA ROMERO,

                                         Defendant-Appellant

Cons. w/No. 15-50211

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

JESUS OLVERA-ROMERO, also known as J. Jesus Olvera-Romero,

                                         Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:14-CR-715-1
                           USDC No. 2:14-CR-78-1
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                                        15-50171

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Jesus Olvera Romero (Olvera) appeals the sentences imposed
following his guilty plea conviction for illegal reentry after prior removal and
the revocation of a previous term of supervised release. He maintains that the
combined 48-month sentence was greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a) because U.S.S.G. § 2L1.2, the
guideline that applies to illegal-reentry offenses, is not empirically based and
results in prior convictions, including those that are too remote to be included
in the criminal history calculation, being unduly weighed. Olvera argues that
sentences under § 2L1.2 are not entitled to a presumption of reasonableness
because the guideline is not empirically based; as he concedes, that argument
is foreclosed. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67
(5th Cir. 2009). He further argues that his sentence, which was greater than
necessary to provide adequate deterrence and to protect the public, overstated
the seriousness of his illegal-reentry offense, undermined respect for the law,
and failed to provide just punishment.
       Olvera did not object to his sentences after their imposition and, thus,
plain error review typically applies. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). However, because Olvera’s substantive reasonableness
claims fail even under the ordinary standard, the standard of review is not
dispositive. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
To the extent that Olvera contends that no objection is needed to preserve the




       * 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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                                   15-50171

issue of the substantive reasonableness of a sentence, that argument, as he
concedes, is foreclosed. See Peltier, 505 F.3d at 391-92.
      The 42-month sentence imposed for Olvera’s illegal-reentry offense was
within the guidelines range and, therefore, is entitled to the presumption of
reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
The record reflects that the district court’s sentencing decision was based upon
an individualized assessment of the facts in light of the § 3553(a) factors. See
Gall v. United States, 552 U.S. 38, 51 (2007). The district court’s decision is
entitled to deference, and we may not reweigh the § 3553(a) factors. Id. at 51-
52. Olvera’s claim that his sentence is unreasonable because § 2L1.2 lacks an
empirical basis and inordinately weighs prior convictions, including those too
remote to receive criminal history points, is unavailing. See United States v.
Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011); United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). We have rejected challenges that are based upon
the alleged triviality of illegal-reentry offenses. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006). Thus, Olvera has not rebutted the
presumption of reasonableness. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      To the extent that Olvera separately challenges the reasonableness of
his revocation sentence, he has not shown that the within-guidelines six-month
sentence was plainly unreasonable. See United States v. Miller, 634 F.3d 841,
843 (5th Cir. 2011). The district court had the discretion to order the sentences
to be served consecutively. See United States v. Whitelaw, 580 F.3d 256, 260-
61 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & comment.
(n.4), p.s. Because the sentence fell within the advisory policy range and was
consistent with the Guidelines’ policy with regard to consecutive sentences, it
is entitled to a presumption of reasonableness. See U.S.S.G. § 7B1.1(a)(2);



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§ 7B1.4; United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). Olvera
has failed to show that the district court abused its discretion by imposing the
consecutive sentence and has not rebutted the presumption of reasonableness.
See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008).
      AFFIRMED.




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