     Case: 10-50247 Document: 00511369033 Page: 1 Date Filed: 02/02/2011




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

                                                 FILED
                                                                          February 2, 2011
                                     No. 10-50247
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER ROBLES-PANTOJA, also known as Chico,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-88-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Javier Robles-Pantoja appeals the 84-month sentence imposed following
his guilty plea conviction of illegal reentry. Robles-Pantoja argues that he was
incorrectly assessed three criminal history points under U.S.S.G. § 4A1.2(e)(1)
for his 1989 Texas conviction for delivery of a controlled substance because the
conviction was too old to be counted. He correctly concedes that because he did
not raise this argument below, review is limited to plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50247

      The issue presents a factual question regarding the expiration of Robles-
Pantoja’s sentence in the relevant offense.      This question was capable of
resolution upon proper objection in the district court and, therefore, cannot
amount to plain error. See United States v. Lopez, 923 F.2d 47, 50 (5th Cir.
1991).
      Robles-Pantoja’s second argument, which he raised in the district court,
is that the 84-month sentence imposed is greater than necessary to achieve the
sentencing objectives set forth in 18 U.S.C. § 3553(a).        We consider the
substantive reasonableness of the sentence under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). “[A] sentence within a
properly calculated Guideline range is presumptively reasonable.” United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 551
U.S. 338, 347 (2007).
      The district court listened to Robles-Pantoja’s assessment of the § 3553(a)
factors and stated that it was considering those arguments as well as the
§ 3353(a) factors and the guidelines.       Robles-Pantoja’s argument that the
§ 3553(a) considerations should have been balanced differently does not suffice
to show that his sentence is substantively unreasonable. Cf. United States v.
Armstrong, 550 F.3d 382, 405 (5th Cir. 2008). Furthermore, he has not rebutted
the presumption of reasonableness because he has not shown that the district
court failed to account for a sentencing factor that should have been accorded
substantial weight, gave substantial weight to an “irrelevant or improper factor,”
or made “a clear error of judgment in balancing sentencing factors.” See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930
(2010).
      Finally, Robles-Pantoja argues for the first time on appeal that the
presumption of reasonableness should not apply in this case because the
Guideline that was the basis for his sentence, U.S.S.G. § 2L1.2, is not based
upon empirical data. He concedes that this court has rejected his empirical data

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                                  No. 10-50247

argument, and he states that he is raising the argument to preserve it for
Supreme Court review. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009); United States v. Mondragon-Santiago, 564
F.3d 357, 364-65 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      AFFIRMED.




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