     Case: 17-50657       Document: 00514450895         Page: 1     Date Filed: 04/30/2018




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

                                     No. 17-50657                                FILED
                                   Summary Calendar                          April 30, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FRANCISCO J. ROMAN, also known as Francisco Javier Roman-Reyna, also
known as Francisco Javier Reyna, also known as Roman Francisco,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-93-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Francisco J. Roman challenges his within-Guidelines sentence of 18
months’ imprisonment, imposed upon his guilty-plea conviction for illegal
reentry into the United States, in violation of 8 U.S.C. § 1326. He contends the
sentence is substantively unreasonable because it is greater than necessary to
accomplish the sentencing goals in 18 U.S.C. § 3553(a).



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-50657

      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, 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).
      Because Roman did not raise his substantive-unreasonableness
challenge in district court, review is only for plain error. E.g., United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007).          (Recognizing his following
contention is foreclosed by our precedent, Roman notes there is a circuit split
on whether the failure to object to the reasonableness of a sentence results in
plain-error review; and he raises that issue to preserve it for possible further
review.)
      Under the plain-error standard, Roman must show a forfeited plain error
(clear or obvious error, rather than one subject to reasonable dispute) that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct such
reversible plain error, but generally should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Id.
      Roman contends his sentence fails to reflect his personal history and
circumstances, does not sufficiently account for his motivation in returning to
the United States, and is greater than necessary to provide adequate
deterrence and to protect the public. He notes he lived in the United States for



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                                  No. 17-50657

25 years, returned to be with his family, did not commit a violent crime or pose
a danger to others, and has abstained from drinking alcohol since 2013. He
further asserts his sentence overstates the seriousness of his offense, fails to
provide just punishment, and undermines respect for the law because
Guideline § 2L1.2 lacks an empirical basis, disproportionately punishes what
is essentially a non-violent “international trespass”, and overemphasizes
defendant’s criminal history by double counting prior convictions in the offense
level and in the criminal-history calculation. (As to his challenge regarding
Guideline § 2L1.2, Roman concedes our court has rejected the proposition the
Guideline is substantively unreasonable because it lacks empirical support or
effectively double-counts defendant’s criminal history.       United States v.
Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009). Regardless, he raises the issue
to preserve it for possible further review.)
      Roman cannot show clear or obvious error because sentences falling
within the Guidelines sentencing range are presumptively reasonable, and his
sentence was well within the Guidelines sentencing range. E.g., United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). His assertions do not rebut the
presumption of reasonableness. United States v. Gomez-Herrera, 523 F.3d 554,
565–66 (5th Cir. 2008); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th
Cir. 2008).
      AFFIRMED.




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