     Case: 16-50274       Document: 00513855917         Page: 1     Date Filed: 01/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 16-50274                                    FILED
                                   Summary Calendar                           January 31, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE EDUARDO QUEZADA-HUERTA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:15-CR-1631-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       For his guilty-plea conviction for illegal reentry in violation of 8 U.S.C.
§ 1326,     Jose    Eduardo      Quezada-Huerta          challenges     the       substantive
reasonableness of his within-Guidelines sentence.                   He does not claim
procedural error in calculating his Guidelines sentencing range.
       Quezada’s total offense level of 17, coupled with his criminal-history
category of I, resulted in a sentencing range of 24–30 months’ imprisonment.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-50274     Document: 00513855917       Page: 2   Date Filed: 01/31/2017


                                   No. 16-50274

At sentencing, Quezada asked the court to sentence him below that range
because he had a minimal criminal history, and because he reentered the
United States illegally out of fear that individuals who kidnapped him in 2010
sought to harm him again. The court sentenced Quezada at the bottom of the
sentencing range, to 24-months’ imprisonment. He objected “to the sentence
under the [18 U.S.C. § 3553(a) sentencing] factors as exceeding what is
necessary under those factors”.
      A properly-preserved objection to an ultimate sentence is reviewed for
substantive reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). For issues preserved in district court,
its application of the Guidelines is reviewed de novo; its factual findings, only
for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th
Cir. 2008). To the extent Quezada failed to preserve in district court his
contentions on appeal, review is only for plain error. See United States v.
Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
      Quezada first contends his sentence is substantively unreasonable
because Guideline § 2L1.2 lacks an empirical basis, thus its application
resulted in an unduly inflated sentencing range. Our court has repeatedly
rejected similar challenges. E.g., United States v. Duarte, 569 F.3d 528, 530–
31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366–
67. (Quezada concedes a challenge to Guideline § 2L1.2’s lacking an empirical
basis is foreclosed in this circuit and raises this issue to preserve it for possible
further review.)
      Next, Quezada asserts his sentence overstates the seriousness of his
offense and fails to provide just punishment because the Sentencing
Commission recently revised § 2L1.2; and, under that revised Guideline, his
resulting sentencing range would be substantially lower. Quezada has not



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                                   No. 16-50274

shown the court erred by applying the version of the Guidelines in effect at the
time of sentencing. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir.
1999); U.S.S.G. § 1B1.11(a).
      Finally, Quezada contends the sentence imposed did not adequately
account for his personal history and characteristics, to wit: that he illegally
reentered to flee from individuals who had previously kidnapped him. Where,
as here, the district court imposes a sentence within a correctly calculated
Guidelines sentencing range, a rebuttable presumption of reasonableness
applies. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The court sentenced Quezada within the Guidelines range after listening
to his mitigating arguments regarding the dangers he allegedly faced in
Mexico. The “sentencing judge is in a superior position to find facts and judge
their import under [18 U.S.C.] § 3553(a) with respect to a particular
defendant”. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008).
      Quezada    fails     to   rebut   the   above-described   presumption      of
reasonableness. In short, there was no error, plain or otherwise.
      AFFIRMED.




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