     Case: 12-40893       Document: 00512415193         Page: 1     Date Filed: 10/21/2013




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

                                                                            FILED
                                                                         October 21, 2013
                                       No. 12-40893
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BLAS CRUZ URBINA, also known as Blas Cruz, also known as Bla Cruz, also
known as Francisco U. Cruz,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-236-1


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Blas Cruz Urbina (Cruz) appeals the 60-month sentence imposed following
his guilty-plea conviction for attempted illegal reentry after deportation, in
violation of 8 U.S.C. § 1326. He contends his sentence above the advisory
Sentencing Guidelines range of eight to 14 months was both procedurally and
substantively unreasonable.
       Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness under

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40893     Document: 00512415193       Page: 2   Date Filed: 10/21/2013

                                   No. 12-40893

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, 51 (2007). 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.         See, 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).
      Along that line, because Cruz did not preserve his objection that the court
erred procedurally by basing his sentence on claimed erroneous factual findings,
inferences, and speculation, the objection is reviewed only for plain error. Under
that standard of review, Cruz must show a clear or obvious forfeited error that
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). Even if he shows such reversible plain error, we have the discretion to
correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
      In plain-error review, “questions of fact capable of resolution by the district
court can never constitute plain error”. See United States v. Chung, 261 F.3d
536, 539 (5th Cir. 2001) (citation and internal quotation marks omitted).
Accordingly, Cruz’ challenges to the factual findings and inferences by the court,
not objected to at sentencing, cannot constitute plain error. See id.
      Even assuming arguendo the court’s findings and inferences merit
analysis, there was no reversible plain error. The court was within its wide
discretion in rejecting Cruz’ assertions he was supportive of his wife and family,
see United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir.), cert. denied,
133 S. Ct. 247 (2012), and its inference Cruz’ family may not want to have
contact with him was plausible in the light of the record as a whole. See United
States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Finally, given the court’s
stated concerns regarding the seriousness of Cruz’ prior unscored convictions,
the light sentences he received for his previous crimes, repeated reentry into the

                                         2
    Case: 12-40893     Document: 00512415193     Page: 3   Date Filed: 10/21/2013

                                  No. 12-40893

United States following prior deportations, and recent convictions for theft and
driving while intoxicated (DWI), there is nothing in the record to suggest, absent
the court’s erroneous determination his prior Texas DWI offense constituted a
crime of violence, see United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir.
2001) (holding Texas felony DWI is not a crime of violence), that he would have
received a lesser sentence. See Puckett, 556 U.S. at 135; cf. United States v.
Chandler, __ F.3d __, 2013 WL 5508139, at *4 (5th Cir. 4 Oct. 2013) (vacating
and remanding 127-month variance where “we [could not] confidently say that
the district court would have imposed the same sentence without reliance on [an
improper] factor”) (citations and internal quotation marks omitted).
      We need not consider the propriety of the sentence as an upward
departure, pursuant to Guideline § 4A1.3, because the sentence may be affirmed
on the court’s alternate basis as an upward variance justified by the 18 U.S.C.
§ 3553(a) sentencing factors. See United States v. Bonilla, 524 F.3d 647, 656-59
(5th Cir. 2008). On that point, Cruz maintains the court erred procedurally by
failing to adequately explain the extent of the variance. In the light of this
record, the court relied on proper factors and provided a sufficient explanation
for the extent of the variance. See United States v. Smith, 440 F.3d 704, 707-08
(5th Cir. 2006). In stating its reasons for a non-Guidelines sentence, the court
noted the need to afford adequate deterrence and to promote respect for the law,
and considered Cruz’ history and characteristics.
      Cruz also contends the sentence was substantively unreasonable given the
above-noted, alleged procedural errors and because the court allegedly failed to
give appropriate mitigating weight to his alcohol addiction, his family-related
reasons for repeatedly returning to the United States, and his need for alcohol
rehabilitation. He further asserts the court exaggerated the seriousness of his
theft and DWI convictions and the likelihood of recidivism based upon his three
prior deportations.



                                        3
    Case: 12-40893      Document: 00512415193       Page: 4    Date Filed: 10/21/2013

                                    No. 12-40893

      The sentence is substantively reasonable. The court tied the above-noted
reasons for it to specific facts and particular § 3553(a) factors sufficient to justify
the variance. See Gall, 552 U.S. at 49-53. Although significant, it was not
unreasonable. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir.
2011); see also United States v. Saldana, 427 F.3d 298, 315-16 (5th Cir. 2005)
(affirming upward departure six times maximum advisory Guidelines range
where court stated valid reasons for doing so).
      AFFIRMED.




                                          4
