     Case: 12-50489       Document: 00512162741         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-50489
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CODY HUMBERTO LESTER-OCHOA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-156-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       For the first time on appeal, Cody Humberto Lester-Ochoa (Lester) asserts
that his 51-month guidelines sentence for illegal reentry is substantively
unreasonable. He argues that his sentence was greater than necessary to
accomplish the sentencing goals of 18 U.S.C. § 3553(a) and that the Guidelines
failed to account for factors that suggest a lesser sentence would be appropriate,
such as the remoteness of his criminal history, his motive for returning to the
United States, and the length of his prior sentences.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50489     Document: 00512162741     Page: 2   Date Filed: 03/04/2013

                                  No. 12-50489

      Although we ordinarily review sentences for reasonableness under an
abuse-of-discretion standard, we review here for plain error because Lester did
not object to the reasonableness of his sentence in the district court. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Lester also asserts that
a presumption of reasonableness should not apply to his within guidelines
sentence because the illegal reentry guideline is not supported by empirical data,
but he recognizes that this argument is foreclosed. See United States v. Duarte,
569 F.3d 528, 530-31 (5th Cir. 2009).
      At sentencing, the district court court recited the applicable guidelines
calculations and range, and it adopted the PSR in its written Statement of
Reasons. The district court also heard Lester’s allocution and his arguments for
a lesser sentence. Lester has not shown that his sentence does not account for
a factor that should have received significant weight, that it gives significant
weight to an irrelevant or improper factor, or that it represents a clear error of
judgment in balancing sentencing factors. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Therefore, he has failed to rebut the presumption that
his guidelines sentence is substantively reasonable. See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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