     Case: 13-50553   Document: 00512550490   Page: 1   Date Filed: 03/05/2014




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

                               No. 13-50553                            FILED
                             Summary Calendar                      March 5, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

ERASMO GARCIA-GONZALEZ,

                                         Defendant - Appellant



Consolidated with 13-50555



UNITED STATES OF AMERICA,

                                         Plaintiff - Appellee

v.

ERASMO GARCIA-GONZALEZ, also known as Javier Jimenez,

                                         Defendant - Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:13-CR-208-1
                          USDC No. 2:13-CR-405-1
     Case: 13-50553      Document: 00512550490         Page: 2    Date Filed: 03/05/2014


                                      No. 13-50553

Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Erasmo Garcia-Gonzalez appeals both the 24-month, within-Guidelines
sentence imposed following his guilty-plea conviction for illegal reentry
following deportation (2010), in violation of 8 U.S.C. § 1326, and the
consecutive, 16-month sentence imposed following the revocation of his
supervised release. He contends the 24-month sentence was greater than
necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) and failed to
account for his personal history and motive for reentering the United States;
he also contends the 16-month sentence was influenced by the 24-month,
illegal-reentry sentence and was unnecessary under §3553(a)’s factors.
       Garcia does not claim procedural error; he contends both sentences are
substantively unreasonable. At the consolidated sentencing hearing for the
illegal-reentry conviction and the supervised-release revocation, Garcia did not
object to the substantive reasonableness of his sentences; therefore, review is
only for plain error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir.
2007).     Garcia notes a circuit split regarding the standard of review for
substantive-reasonableness claims not raised in the district court, and he
contends other circuits, applying an abuse-of-discretion standard, are correct.
He acknowledges this contention is foreclosed by our decision in Peltier, and
raises it only to preserve it for possible further review.
       Under the plain-error standard, Garcia must show a clear or obvious
forfeited error that affected his substantial rights. E.g., Puckett v. United
States, 556 U.S. 129, 135 (2009). Even if he shows such reversible plain error,



       * 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. 13-50553

we have the discretion whether to correct the error, and should do so only if it
seriously affects the fairness, integrity, or public reputation of the proceedings.
See id.
      “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”        Unites States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008); see also United States v. Lopez-
Velasquez, 526 F.3d 804, 808–09 (5th Cir. 2008) (applying presumption of
reasonableness to within-Guidelines revocation sentence). Garcia contends,
however, the presumption of reasonableness does not apply to his within-
Guidelines sentences because the illegal reentry Guideline, § 2L1.2, and the
revocation Policy Statement, § 7B1.3, are not empirically based. For his illegal-
reentry conviction, he acknowledges this contention is also foreclosed by our
precedent. See United States v. Duarte, 569 F.3d 528, 529–31 & n.11 (5th Cir.
2009). He raises the issue only to preserve it for possible further review.
      As for his supervised-release-revocation sentence, he maintains this
issue “does not appear to be foreclosed” by Duarte. It is foreclosed by Duarte.
In any event, it fails.
      With respect to his 24-month sentence, Garcia re-states mitigating
factors, already presented to the district court, which he contends warrant a
lower sentence for his illegal reentry conviction.          He fails to rebut the
presumption of reasonableness and advances no persuasive reason to disturb
the district court’s choice of sentence.     See, e.g., United States v. Gomez-
Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008). For his consecutive, 16-month
revocation sentence, Garcia again fails to rebut the presumption of
reasonableness. See, e.g., Lopez-Velasquez, 526 F.3d at 809.
      AFFIRMED.




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