     Case: 12-50642       Document: 00512296308         Page: 1     Date Filed: 07/03/2013




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

                                                                            FILED
                                                                            July 3, 2013
                                     No. 12-50642
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

YOHAN ESCOBEDO-GUIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1316-1


Before DeMOSS, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
       Yohan Escobedo-Guia appeals the within-guidelines sentence imposed
following his jury trial conviction for conspiracy to possess with intent to
distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 846
and 841. He argues that his sentence is substantively unreasonable because it
is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
Specifically, he argues that a lesser sentence was warranted because the drug-
trafficking Guidelines lack an empirical basis; he had no prior criminal history

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50642        Document: 00512296308   Page: 2    Date Filed: 07/03/2013

                                   No. 12-50642

and posed only a small danger of recidivism; and his personal history indicated
that he was struggling to make ends meet to support his family and that he had
no history of violence.
      In the district court, Escobedo-Guia did not object to the substantive
reasonableness of the sentence. Escobedo-Guia argues that such an objection is
not required to preserve a challenge to the substantive reasonableness of a
sentence, but he acknowledges that this argument is foreclosed by circuit
precedent, and he raises the issue to preserve it for further review. Accordingly,
we review the substantive reasonableness of the sentence for plain error only.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the
plain error standard, Escobedo-Guia must show a clear or obvious forfeited error
that affected his substantial rights. See Puckett v. United States, 556 U.S. 129,
135 (2009). If Escobedo-Guia makes such a showing, we have discretion to
correct the error but should do so only if the error seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
      As Escobedo-Guia’s sentence was within the guidelines range, a
presumption of reasonableness applies. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). The lack of an empirical basis for a Guideline that was
the basis of the sentence does not affect the presumption of reasonableness. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). While Escobedo-
Guia’s lack of prior criminal history and his personal history may have been
mitigating factors, the district court considered those factors before imposing his
sentence. Accordingly, after considering the totality of the circumstances, see
Gall v. United States, 552 U.S. 38, 51 (2007), we conclude that Escobedo-Guia
has not shown that the district court erred, much less plainly erred, in imposing
his sentence. See Rita v. United States, 551 U.S. 338, 359-60 (2007); Peltier, 505
F.3d at 391-92. The judgment of the district court is AFFIRMED.




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