     Case: 15-20688      Document: 00513756846         Page: 1    Date Filed: 11/11/2016




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

                                                                            FILED
                                    No. 15-20688                    November 11, 2016
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk



UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

DANET ANTONIO PEREZ-BELMARES,
 Also Known as Danet Perez, Also Known as David Medina,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-356-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Danet Perez-Belmares pleaded guilty of illegal reentry by a previously


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20688       Document: 00513756846         Page: 2     Date Filed: 11/11/2016


                                       No. 15-20688

deported alien following an aggravated felony conviction in violation of
8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to a within-
guidelines sentence of 72 months of imprisonment and 3 years of supervised
release. Perez-Belmares claims that the sentence is substantively unreasona-
ble because it overemphasizes his criminal history while not giving adequate
weight to the cultural-assimilation factors under U.S.S.G. § 2L1.2. He also
maintains that the district court plainly erred in concluding that his Texas
conviction of burglary of a habitation is a crime of violence (“COV”) warranting
a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

       This court ordinarily reviews the substantive reasonableness of a sen-
tence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Perez-Belmares concedes, however, that he did not object to substantive rea-
sonableness. Therefore, our review is for plain error. 1

       Perez-Belmares contends that the district court overemphasized his
criminal history and failed to accord sufficient weight to his cultural assimila-
tion. That argument is nothing more than a disagreement with the weighing
of the 18 U.S.C. § 3553(a) factors, which is insufficient to show abuse of discre-
tion, let alone reversible plain error. See United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010). Perez-Belmares’s alleged cultural assimilation does not
rebut the presumption of reasonableness applicable to his within-guidelines
sentence or establish that the court committed plain error. 2


       1  United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009). Although Perez-
Belmares concedes his failure to object, he points out that circuits are divided on whether a
failure to object to the reasonableness of a sentence is subject to plain-error review, and he
seeks to preserve that issue for possible review by the Supreme Court.

       2 Perez-Belmares also argues that the presumption of reasonableness should not apply
to his sentence because § 2L1.2 and the 16-level COV enhancement are not based on empiri-
cal evidence or study. He correctly concedes, however, that that argument is foreclosed by
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).


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                                       No. 15-20688

       For the first time on appeal, Perez-Belmares avers that his Texas con-
viction is not a COV. He relies on Johnson v. United States, 135 S. Ct. 2551
(2015), for his theory that the definition of COV found in 18 U.S.C. § 16(b) and
incorporated in the commentary of § 2L1.2 is void for vagueness. Because he
did not raise that challenge before the district court, he correctly concedes that
review is for plain error. See Whitelaw, 580 F.3d at 260.

       As the government points out, the sentence was not calculated by refer-
ence to either the residual clause in 18 U.S.C. § 924(e)(2)(B), which was struck
down in Johnson, or § 16(b). His offense of burglary of a habitation is an enum-
erated offense within the commentary of § 2L1.2, and Johnson is inapplicable. 3
Perez-Belmares concedes that his prior conviction qualifies as an enumerated
COV under the guidelines commentary. By failing to brief any challenge to the
statutory definition of Texas burglary of a habitation, Perez-Belmares has
abandoned any contrary argument. 4

       The judgment of sentence is AFFIRMED.




       3 See Johnson, 135 S. Ct. at 2563 (“Today’s decision does not call into question appli-
cation of the Act to the four enumerated offenses, or the remainder of the Act’s definition of
a violent felony.).
       4 See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (stating that issues
not raised and argued in appellant’s initial brief are waived).


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