     Case: 17-50789      Document: 00514971122         Page: 1    Date Filed: 05/24/2019




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

                                                                                 FILED
                                    No. 17-50789                             May 24, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JORGE FELIPE PAYAN-MORALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:17-CR-897-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jorge Felipe Payan-Morales appeals the 30-month prison sentence
imposed following his guilty-plea conviction for illegally reentering the United
States in violation of 8 U.S.C. § 1326. For the first time on appeal, he argues
that his sentence is substantively unreasonable because it is greater than
necessary to comply with the purposes of 18 U.S.C. § 3553(a). In particular,
Payan-Morales argues that the structure of U.S.S.G. § 2L1.2, the illegal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50789

reentry Guideline, produced a sentencing range that was greater than
necessary because it double counted his prior convictions, placed too much
emphasis on convictions that occurred when he was young, exaggerated his
risk of recidivism, overstated the danger he posed, and gave insufficient
consideration to the nature of his particular reentry offense. In light of the
structure of § 2L1.2, Payan-Morales contends that the district court had a
heightened responsibility to assure that a reasonable sentence under § 3553(a)
was imposed. He argues that the court clearly erred by failing to account for
many § 3553(a) factors, including the nonviolent nature of his offense; his hard
work in building a business when he reentered this country; his responsible
and conscientious conduct; how he had matured and become a contributing
member of society; the threats and physical violence he suffered in Mexico
before his reentry; and his desire to protect his family and seek safety in the
United States.
      “We generally review the substantive reasonableness of a sentence for
abuse of discretion under the totality of the circumstances.” United States v.
Heard, 709 F.3d 413, 425 (5th Cir. 2013). However, when the defendant does
not object in the district court to the reasonableness of a sentence, we apply
plain-error review. Id. It is unnecessary for us to decide the standard of review
in this case because Payan-Morales has not shown error, plain or otherwise.
      We have previously held that a within-Guidelines sentence calculated
under § 2L1.2 is presumptively reasonable despite the fact that § 2L1.2 counts
a defendant’s criminal history twice. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). Also, Payan-Morales’s sentence is not rendered
unreasonable by the remoteness of his prior convictions, see United States v.
Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011), or by the nature of his illegal-
reentry offense, see United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.



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                                No. 17-50789

2008). It is further unavailing for Payan-Morales to argue that his benign
motives for reentering the United States compelled a lesser sentence. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      The record reflects that the district court made an individualized
assessment of the sentencing factors, considered all of Payan-Morales’s
arguments for a below-Guidelines sentence, balanced them with the § 3553(a)
factors, and concluded that a sentence at the bottom of the Guidelines range
was fair and reasonable. Given the presumption of reasonableness applicable
to a within-Guidelines sentence on appellate review and the deference owed to
the district court’s weighing of the § 3553(a) factors, Payan-Morales’s
arguments do not show that the district court erred, plainly or otherwise, in
selecting a sentence at the bottom of the Guidelines range. See Heard, 709
F.3d at 424-25; United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th
Cir. 2008).
      AFFIRMED.




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