     Case: 13-50987   Document: 00512887002   Page: 1   Date Filed: 12/31/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                               No. 13-50987
                             c/w No. 13-50999
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                            Summary Calendar                           FILED
                                                                December 31, 2014
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                         Plaintiff - Appellee

v.

ROBERTO PENA-LUNA, also known as Jose Luis Pena-Luna, also known as
Jose Luis Luna-Pena,

                                         Defendant - Appellant
_____________________
Cons. w/13-50999

UNITED STATES OF AMERICA

                                         Plaintiff - Appellee

v.

ROBERTO PENA-LUNA, also known as Jose Pena-Luna, also known as
Roberto Pena, also known as Jose Luis Luna-Pena,

                                         Defendant - Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 3:11-CR-1501-1
     Case: 13-50987       Document: 00512887002         Page: 2     Date Filed: 12/31/2014


                                      No. 13-50987
                                    c/w No. 13-50999
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Roberto Pena-Luna challenges the sentences imposed following his
guilty-plea conviction for illegal reentry into the United States after removal,
in violation of 8 U.S.C. § 1326(a) (“[A]ny alien who has been denied admission,
excluded, deported, or removed . . . and thereafter enters, attempts to enter, or
is at any time found in, the United States . . . shall be fined under Title 18, or
imprisoned not more than 2 years, or both”), and the revocation of his prior
term of supervised release for the prior illegal reentry.                He contends the
combined 36-month sentence is greater than necessary to meet the goals of 18
U.S.C. § 3553(a) and is therefore substantively unreasonable. Along that line,
he asserts:     the presumption of reasonableness should not apply because
Sentencing Guideline § 2L1.2 lacks an empirical basis; the Guideline provision
double-counts his criminal history and overstates the seriousness of his
offense, which, according to him, is essentially an international trespass
offense; and the sentence fails to reflect his personal history, characteristics,
and diminished motive for returning to the United States, which mitigate the
seriousness of his offense.
       Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of



       * 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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                                 No. 13-50987
                               c/w No. 13-50999
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “If
a district court sentences a defendant within a properly calculated [G]uideline
range, that sentence enjoys a presumption of reasonableness”. United States
v. Aguirre-Villa, 460 F.3d 681, 682 (5th Cir. 2006) (citation and internal
quotation marks omitted).
      The 24-month sentence imposed for Pena’s illegal-reentry offense was
within the advisory Guidelines-sentencing range and is, therefore, entitled to
the above-referenced presumption of reasonableness.         E.g., id.   As Pena
concedes, his claim that this court should not apply the presumption of
reasonableness because Guideline § 2L1.2 is not empirically based is
foreclosed. E.g., United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009).
(The claim is presented only to preserve it for possible future review.) Our
court has also rejected his claims that double-counting of prior convictions
necessarily renders a sentence unreasonable, id. at 529–30, and that the
Guidelines overstate the seriousness of illegal reentry because it is a claimed
nonviolent international trespass offense, e.g., Aguirre-Villa, 460 F.3d at 683.
Pena’s motive to reunite with his family is not sufficient to justify a lower
sentence or to rebut the presumption of reasonableness. E.g., United States v.
Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008). Because Pena has not
shown that the district court failed to consider any significant factors, gave
undue weight to any improper factors, or clearly erred in balancing the
sentencing factors, he has failed to rebut the presumption of reasonableness.
E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Furthermore, Pena has not shown the 12-month revocation sentence was
substantively unreasonable. The district court had the discretion to order that
the sentences be served consecutively. United States v. Whitelaw, 580 F.3d



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                                  No. 13-50987
                                c/w No. 13-50999
256, 260 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & cmt.
n.4. Because the sentence both fell within the advisory-sentencing range and
was consistent with the Guidelines’ policy regarding consecutive sentences, it
is entitled to a presumption of reasonableness. United States v. Candia, 454
F.3d 468, 472–73 (5th Cir. 2006). Pena has failed to show the court abused its
discretion by imposing the consecutive sentence.
      AFFIRMED.




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