     Case: 15-40731      Document: 00513475288         Page: 1    Date Filed: 04/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40731
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 21, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARLON ARTURO DUBON-VALENZUELA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1663-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Marlon Arturo Dubon-Valenzuela appeals the eighty-month within-
guidelines sentence imposed following his conviction for illegal reentry after
deportation. Dubon-Valenzuela challenges the substantive reasonableness of
his sentence, arguing that the court failed to consider his mitigating arguments
that his life was threatened by gangs in El Salvador and that he was kidnapped
in Mexico by the Gulf Cartel. He also argues that the prior aggravated assault


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40731    Document: 00513475288      Page: 2   Date Filed: 04/21/2016


                                  No. 15-40731

conviction for which he received a 16-level enhancement overstated the
seriousness of his criminal history because of its staleness.
      Because Dubon-Valenzuela did not object post-sentencing to the
reasonableness of his sentence, our review is for plain error. See United States
v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). However, even if he did object
and we reviewed for an abuse of discretion, Dubon-Valenzuela’s argument
fails. See Gall v. United States, 552 U.S. 38, 51 (2007). Within-guidelines
sentences are presumed to be reasonable.         United States v. Mondragon-
Santiago, 564 F.3d 357, 360 (5th Cir. 2009). To rebut this presumption of
reasonableness, a defendant must show that his sentence fails to take into
account a factor that should receive significant weight, gives significant weight
to an irrelevant or improper factor, or represents a clear error of judgment in
balancing the sentencing factors. United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      The district court considered Dubon-Valenzuela’s arguments regarding
his individual facts and circumstances in mitigation at the sentencing hearing
and concluded that a sentence at the bottom of the guidelines range was
appropriate.   The court noted that Dubon-Valenzuela had an extensive
criminal history and had returned to this country illegally shortly after his
recent deportation. Addressing his assertions that he was kidnapped, the
district court found that Dubon-Valenzuela was not forced into the country
without any action on his part.
      Turning to Dubon-Valenzuela’s assertion that his 1995 aggravated
assault conviction was stale, 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 presumption of




                                       2
    Case: 15-40731    Document: 00513475288    Page: 3   Date Filed: 04/21/2016


                                No. 15-40731

reasonableness that attaches to such sentences.” United States v. Rodriguez,
660 F.3d 231, 234 (5th Cir. 2011).
      Dubon-Valenzuela’s argument that the district court should have
sentenced him to a lesser sentence merely reflects his disagreement with the
propriety of his sentence. See United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010). He has not shown sufficient reason for this court to disturb the
presumption of reasonableness applicable to his within-guidelines sentence.
See Cooks, 589 F.3d at 186.
      Accordingly, the judgment of the district court is AFFIRMED.




                                     3
