     Case: 11-51238     Document: 00512024552         Page: 1     Date Filed: 10/18/2012




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

                                                                            FILED
                                                                         October 18, 2012
                                     No. 11-51238
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN ALBERTO MURELLO-GOMEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2043-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Juan Alberto Murello-Gomez appeals his within-Guidelines guilty-plea
sentence for illegal reentry after deportation or removal. He was sentenced,
inter alia, to 41-months imprisonment. Murello challenges the substantive
reasonableness of the sentence, claiming it is greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a). He contends his sentence fails to
account for certain mitigating factors, such as cultural assimilation and his
reasons for returning to the United States.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51238

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, 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); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Murello’s failure to object at sentencing to the reasonableness of his
sentence triggers plain error review. United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007). To show plain error, Murello must show, inter alia, a
forfeited error that is clear or obvious. Puckett v. United States, 556 U.S. 129,
135 (2009). He fails to do so.
      The district court considered the factors Murello raises on appeal, and
made an individualized sentencing decision based on the facts, and in the light
of the § 3553(a) factors. Gall, 552 U.S. at 49-50. Murello’s within-Guidelines
sentence is entitled to a presumption of reasonableness. E.g., United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). He fails to show the presumption
should not apply. The district court did not abuse its discretion in imposing a
sentence within the advisory sentencing range. E.g., Gall, 552 U.S. at 50-51.
      Our court has consistently rejected Murello’s challenges to: application of
plain error review if there is no objection to the sentence’s substantive
reasonableness after the sentence is imposed, Peltier, 505 F.3d at 391-92; the
presumption of reasonableness accorded to within-Guidelines sentences imposed
under § 2L1.2, United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); and
the alleged unwarranted disparity created by the Western District of Texas’ lack
of a “fast-track” disposition program, United States v. Gomez-Herrera, 523 F.3d




                                         2
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                                No. 11-51238

554, 562-64 (5th Cir. 2008). He raises these issues only to preserve them for
possible future review.
      AFFIRMED.




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