     Case: 14-50609      Document: 00512955107         Page: 1    Date Filed: 03/03/2015




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

                                    No. 14-50609                                  FILED
                                  Summary Calendar                            March 3, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL CORONA, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-682


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Daniel Corona, Jr., appeals the sentence imposed following his guilty
plea conviction for importation into the United States of five kilograms or more
of cocaine. The statutory minimum for this offense is ten years, but Corona
qualified for the safety valve, which rendered the statutory minimum
inapplicable and resulted in a guidelines range of 87-108 months. The district
court imposed a prison term of 96 months.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50609     Document: 00512955107      Page: 2   Date Filed: 03/03/2015


                                  No. 14-50609

      Corona argues that the within-guidelines sentence was substantively
unreasonable because it was greater than necessary to effectuate the
sentencing goals of 18 U.S.C. § 3553(a). More specifically, he contends that the
Guideline under which he was sentenced is not empirically based and that his
guidelines range was improperly driven by drug quantity when he did not
know the quantity of drugs he was transporting. He further asserts that the
sentence was greater than necessary to provide deterrence because he was 59
years old at the time of sentencing, recidivism is lower for older defendants,
and he was a first-time offender who had only limited involvement in a
nonviolent offense. He maintains that the district court improperly considered
his drug abuse as an aggravating factor because treatment for his substance
abuse could further reduce the risk of recidivism.
      In the district court, Corona did not object to the substantive
reasonableness of the sentence. Corona argues that such an objection is not
required to preserve the substantive reasonableness of a sentence for review,
but he acknowledges that this argument is foreclosed by circuit precedent and
raises the issue to preserve it for further review. Accordingly, we review the
substantive reasonableness of the sentence for plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error standard,
Corona must show a clear or obvious forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
Corona makes such a showing, we have discretion to correct the error but only
if the error seriously affects the fairness, integrity, or public reputation of the
proceedings. See id.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). The lack of an empirical basis for the Guideline under which



                                        2
    Case: 14-50609    Document: 00512955107    Page: 3   Date Filed: 03/03/2015


                                No. 14-50609

Corona was sentenced does not disturb the presumption of reasonableness. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). The fact that
this court “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall v.
United States, 552 U.S. 38, 51 (2007). The district court had before it both
mitigating and aggravating factors. The district court balanced these factors,
and it determined that a sentence near the middle of the guidelines range was
appropriate. Considering the totality of the circumstances, as we must, see
Gall, 552 U.S. at 51, Corona has not shown that the sentence was plainly
erroneous. See Rita v. United States, 551 U.S. 338, 359-60 (2007); Peltier, 505
F.3d at 392-94.
      AFFIRMED.




                                      3
