     Case: 11-50502     Document: 00511781152         Page: 1     Date Filed: 03/08/2012




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

                                                                            FILED
                                                                           March 8, 2012
                                     No. 11-50502
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LORETO MOTA REYES, also known as Loretto Reyes Mota, also known as
Loreto Reyes Mota,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-214-1


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Loreto Mota Reyes appeals his 37-month term of imprisonment imposed
following his guilty plea to the charge of being found illegally in the United
States following deportation. Reyes argues that his sentence was procedurally
unreasonable because the district court did not provide reasons for rejecting his
request for a downward variance and failed to take into account non-guideline
factors that should have received significant weight.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50502

      Reyes did not object to the sufficiency of the district court’s reasons for the
sentence imposed and did not request that the district court address the specific
arguments he had made for the variance. “A party must raise a claim of error
with the district court in such a manner so that the district court may correct
itself and thus, obviate the need for our review.” United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Thus, review is for plain error. Id.
      While sentences imposed within the sentencing guidelines range require
little explanation, if a party presents a legitimate issue for a departure the
district court must provide an explanation that allows for meaningful review by
the appellate court. Gall v. United States, 552 U.S. 38, 50 (2007); Rita v. United
States, 551 U.S. 338, 356–57 (2007). The district court’s comments at sentencing
reflected that it was familiar with the presentence report and Reyes’s written
objections to the report. During the hearing, the district court considered
defense counsel’s mitigating arguments supporting a downward variance and
Reyes’s explanation of his background and reasons for being in his present
circumstances. It can be inferred that the district court considered all of this
information in lowering Reyes’s criminal history category and choosing a
sentence, and an additional explanation for the sentence was not required for
meaningful appellate review. See Gall, 552 U.S. at 50; United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). Reyes has not demonstrated plain error with
respect to this issue.
      Reyes argues that in imposing the 37-month sentence, the district court
failed to take into account significant mitigating factors and imposed an
unreasonable sentence that was greater than necessary to accomplish the goals
of 18 U.S.C. § 3553(a). He recognizes that this court has held that the lack of an
empirical basis for the illegal reentry guideline does not overcome the
presumption of reasonableness afforded a guidelines sentence, but he argues
that if combined with the individual circumstances of his case, the lack of an



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                                  No. 11-50502

empirical basis for U.S.S.G. § 2L1.2 renders the sentence unreasonable. He
raises this issue to preserve it for possible Supreme Court review.
      The standard of review is unclear because although Reyes’s counsel
repeated his request for a variance after the sentence was imposed, counsel did
not object on the basis of reasonableness. This court need not resolve this issue
because Reyes has failed to show any error at all.           This court affords a
within-guidelines sentence a rebuttable presumption of reasonableness, which
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),
cert. denied, 130 S. Ct. 1930 (2010). As previously discussed, the district court
was made aware of Reyes’s arguments for a downward variance, which
addressed the relevant § 3553(a) factors in the case. There is nothing to indicate
that the district court failed to assess the relevant factors or gave significant
weight to an improper factor in the case such that the sentence should not be
presumed reasonable. Id.
      This court has consistently rejected Reyes’s empirical data argument, even
when it is accompanied by other arguments justifying the appellant’s illegal
reentry. See United States v. Duarte, 569 F.3d 528, 529–30 (5th Cir. 2009);
United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008). Reyes
has not rebutted the presumption of reasonableness.            Thus, he has not
demonstrated that the 37-month sentence, which was the bottom of the
guidelines range, was the result of an abuse of discretion or plain error. The
sentence imposed was reasonable and is AFFIRMED.




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