     Case: 15-41152      Document: 00513435882         Page: 1    Date Filed: 03/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41152
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 23, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CESAR ANTONIO CORTEZ-ROCHA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-313-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Cesar Antonio Cortez-Rocha was convicted, pursuant to his guilty plea,
of being found illegally in the United States after removal. The district court
varied upwardly from the advisory guidelines range of 24 to 30 months of
imprisonment and imposed a 60-month term of imprisonment to be followed
by a three-year term of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41152

      On appeal, Cortez-Rocha contends that the district court procedurally
erred by sentencing him based on clearly erroneous facts.         His argument
concerns a statement made by the district court following Cortez-Rocha’s
allocution, in which Cortez-Rocha asserted that he had been making a life for
himself in Mexico with his girlfriend and that he had returned to the United
States on account of his father’s illness. The district court, after noting that
Cortez-Rocha had on three previous occasions been sentenced for immigration
violations, and that Cortez-Rocha’s reason for his most recent return to the
United States was his father, stated: “Next time it’ll be your mother and the
time after that it’ll be somebody else. There is always going to be a reason, Mr.
Cortez, for you to come here because, you know, it’s well documented here you
keep coming back here for one reason or another.” Cortez-Rocha argues that
the district court erroneously assumed that he would return to the United
States, and, based on that assumption, refused to accept his assertion at
sentencing that he would henceforward remain in Mexico.
      After United States v. Booker, 543 U.S. 220 (2005), we typically review
sentences for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007).
We first examine whether the district court committed any significant
procedural error, including “selecting a sentence based on clearly erroneous
facts” and “failing to adequately explain the chosen sentence.” Id. at 51. If the
district court’s decision is procedurally sound, we will then consider the
substantive reasonableness of the sentence under an abuse-of-discretion
standard. Gall, 552 U.S. at 51; United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009).
      Because Cortez-Rocha did not challenge his sentence in the district court
on the same grounds that he raises on appeal, we apply plain error review. See
United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). To establish plain



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                                  No. 15-41152

error, Cortez-Rocha must show a forfeited error that is clear or obvious and
that affects his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      Considering Cortez-Rocha’s extensive immigration history, and viewing
the challenged remarks in their overall context, Cortez-Rocha fails to
demonstrate that the district court committed clear or obvious error by
selecting a sentence based on clearly erroneous facts. See Puckett, 556 U.S. at
135. We regard the challenged remarks as part of the district court’s required
statement of reasons for its selection of a sentence above the guidelines range,
and specifically an explanation of why the district court did not credit Cortez-
Rocha’s statement that he would henceforward remain in Mexico. See United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district judge indicated
that illegal reentry was a crime and that she did not understand why people
think that a desire to be with their families entitles them to break the law.
The district court noted that previous sentences of imprisonment had not
deterred Cortez-Rocha from returning to the United States. The district court
expressed its determination that the sentence it had selected was necessary to
promote respect for the law, deter further criminal conduct, and protect the
community. The district court was not required to credit Cortez-Rocha’s self-
serving assertions that he would not come back to the United States in the
future. See United States v. Shell, 972 F.2d 548, 553 (5th Cir. 1992).
      Cortez-Rocha has not made the required showing of clear or obvious
error. See Puckett, 556 U.S. at 135. Accordingly, the judgment of the district
court is AFFIRMED.




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