     Case: 14-40142      Document: 00512823358         Page: 1    Date Filed: 11/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40142
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 3, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RONALD MAURICIO GUEVARA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-652-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ronald Mauricio Guevara appeals the 57-month, within-Guidelines
sentence imposed following his guilty plea to being unlawfully present in the
United States after having previously been deported subsequent to a felony
conviction. Guevara argues that his guilty plea was involuntary because the
magistrate judge (MJ) erred under Federal Rule of Criminal Procedure 11 by
failing to advise him that he would be denied naturalization if he pleaded


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40142


guilty. He further argues that his sentence is procedurally and substantively
unreasonable because the district court: (1) improperly relied on prior criminal
encounters that did not lead to convictions and (2) did not fully consider his
mitigating circumstances.
      Guevara did not raise the Rule 11 issue before the district court. We
therefore review for plain error only. United States v. Vonn, 535 U.S. 55, 63
(2002). Guevara’s rearraignment hearing occurred prior to the December 2013
amendments to Rule 11, which required district courts to inform a defendant
that if he is not a United States citizen, a conviction could result in his removal
from the United States as well as denial of citizenship and denial of admission.
FED. R. CRIM. P. 11(b)(1)(O). Despite not being required to do so, the MJ
admonished Guevara about the possible immigration consequences of pleading
guilty, namely that he could be deported, removed, or excluded and would not
be allowed to legally reenter the United States. Given these advisements and
Guevara’s “solemn declarations in open court” that he understood the charges
against him and the consequences of pleading guilty, he cannot demonstrate
that but for the MJ’s failure to specifically note that he could be denied
naturalization, he would likely not have pleaded guilty.        United States v.
McKnight, 570 F.3d 641, 649 (5th Cir. 2009); see United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
      Because Guevara also did not challenge the reasonableness of his
sentence in the district court, we review for plain error only. See United States
v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Guevara’s argument that his
sentence is procedurally unreasonable is frivolous because the record makes
clear that, contrary to Guevara’s assertion, the district court did not
consider any dismissed or no-billed charges in determining the sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Delgado-

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                                  No. 14-40142


Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009); Montgomery v. United States,
933 F.2d 348, 350 (5th Cir. 1991).
      Moreover, the record also reflects that the district court considered the
relevant 18 U.S.C. § 3553(a) factors as well as Guevara’s arguments for
mitigating his sentence but implicitly overruled those arguments and
concluded that a within-Guidelines sentence was adequate and appropriate.
See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008).
Accordingly, we decline Guevara’s invitation to reweigh the § 3553(a) factors
because “the sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant.” United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
      Guevara’s general disagreement with the propriety of his sentence and
the district court’s weighing of the § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-Guidelines sentence.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Guevara has not demonstrated that
the district court committed error, plain or otherwise, by sentencing him to a
within-Guidelines, 57-month prison term and, thus, has not shown that his
sentence is substantively unreasonable. See Gall, 552 U.S. at 51; Peltier, 505
F.3d at 392. Accordingly, the judgment of the district court is AFFIRMED.




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