     Case: 11-50069     Document: 00511599013         Page: 1     Date Filed: 09/12/2011




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

                                                                            FILED
                                                                        September 12, 2011
                                     No. 11-50069
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICARDO GUZMAN-NAJERA, also known as Ricardo Guzman Najera, also
known as Ricardo Guzman,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2008-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ricardo Guzman-Najera (Guzman) appeals from his conviction of illegal
reentry.      He contends that his 57-month within-range sentence was
substantively unreasonable because (1) the 1998 drug conviction used to increase
his offense level was stale; (2) the sentence was much higher than his previous
illegal reentry sentences; and (3) he had benign motives for reentering the
United States. He further argues that he need not have explicitly challenged his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50069    Document: 00511599013      Page: 2    Date Filed: 09/12/2011

                                  No. 11-50069

sentence as unreasonable in the district court to preserve substantive
reasonableness as an issue for appeal and that a within-range sentence
calculated using the illegal reentry guideline should not be presumed reasonable
because the guideline is not empirically based. He concedes, correctly, that this
court requires an objection to preserve substantive reasonableness as an issue
and that his challenge to the presumption of reasonableness is foreclosed, but he
raises these issues to preserve them for further review.
      Here, a below-range sentence was requested, but no objection was raised
to the reasonableness of the 57-month within-range sentence. A defendant must
object to the substantive reasonableness of a sentence to preserve the issue for
appeal. Otherwise, review is for plain error. United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009). To show plain error, the appellant 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 appellant makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      This court presumes that a within-range sentence calculated under the
illegal reentry guideline is reasonable. United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009). In order to rebut the presumption of correctness, the
defendant must show “that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing factors.”
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct.
1930 (2010).
      Guzman relies in part on United States v. Amezcua-Vasquez, 567 F.3d
1050, 1055-58 (9th Cir. 2009), and in part on a proposed amendment to the
Sentencing Guidelines to argue that his sentence is unreasonable due to the



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                                 No. 11-50069

staleness of the 1998 drug conviction that resulted in a 12-level upward
adjustment to his base offense level. We reject Guzman’s arguments.
      First, Amezcua-Vasquez was issued by another circuit and is not binding
on this court. See Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004).
Second, “the sentencing judge is in a superior position to find facts and judge
their import under [18 U.S.C.] § 3553(a) with respect to a particular defendant.”
United States v. Campos–Maldonado, 531 F.3d 337, 339 (5th Cir.2008). Third,
we have rejected any attempt “to turn the Ex Post Facto Clause on its head by
arguing that it requires this Court to apply amendments taking effect
subsequent to sentencing when those amendments would decrease a defendant’s
sentence.” United States v. Fields, 72 F.3d 1200, 1216 (5th Cir. 1996).
      We reject the arguments that the 57-month sentence for the current
offense was excessive for the purpose of deterrence when compared to Guzman’s
previous sentences and that an appropriate relationship between the current
sentence and his previous sentences is required. His return to the United States
after having served two 30-month sentences for illegal reentry suggests that a
stricter sentence was appropriate to discourage future offenses and encourage
respect for the law. See § 3553(a)(2)(A)&(B).
      Guzman asserts that he reentered the United States to visit his U.S.
citizen children and to find better-paying employment to support his brother’s
orphaned children. He does not indicate how these reasons are sufficiently
unusual to rebut the presumption of correctness given to his within-range
sentence. See Cooks, 589 F.3d at 186.
      We find no showing of error, plain or otherwise, as to the reasonableness
of Guzman sentence. See Puckett, 129 S. Ct. at 1429.
      AFFIRMED.




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