     Case: 13-50760      Document: 00512708580         Page: 1    Date Filed: 07/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50760
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 23, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

RAMON CARRILLO-ORTIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:13-CR-135-1


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Ramon Carrillo-Ortiz was convicted of illegal reentry into the United
States and was sentenced to serve 41 months in prison and a three-year term
of supervised release.       Now, he argues that his sentence is substantively
unreasonable.
       We typically review the substantive reasonableness of a sentence for an
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). However,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50760

when, as is the case here, the defendant does not object to his sentence, then
his appellate claims are reviewed for plain error only. See United States v.
Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007). To meet this standard, Carrillo-
Ortiz must show an error that was clear or obvious and affected his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes
such a showing, this court has the discretion to correct the error, but we will
do so only if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks, brackets, and citation
omitted). This standard has not been met.
      The presumption of reasonableness afforded a within-guidelines
sentence such as Carrillo-Ortiz’s “is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Carrillo-Ortiz has not made this
showing.
      First, he avers that he would have had a much lower guidelines range
had he been convicted of the unauthorized use charge originally brought
against him, rather than the theft offense to which he pleaded. He argues that
his sentence is substantively unreasonable because the district court failed to
accord proper weight to this fact. This argument amounts to little more than
a disagreement with the propriety of his sentence, which does not show
unreasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
His second argument, that the theft conviction’s staleness resulted in an
unreasonable sentence, is also unavailing, as “the staleness of a prior
conviction used in the proper calculation of a guidelines-range sentence does
not render a sentence substantively unreasonable and does not destroy the



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                                 No. 13-50760

presumption of reasonableness that attaches to such sentences.” See United
States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011).
      Finally, as Carrillo-Ortiz concedes, his argument that the presumption
of reasonableness should not be applied to his sentence because U.S.S.G.
§ 2L1.2 lacks an empirical basis is foreclosed. See United States v. Duarte, 569
F.3d 528, 530-31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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