Case: 13-50342      Document: 00512485547         Page: 1    Date Filed: 12/31/2013




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

                                                                                     FILED
                                    No. 13-50342                             December 31, 2013
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JESUS JOSE UBANDA-HERNANDEZ, also known as Jose Jesus Ubanda-
Hernandez,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2874-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jesus Jose Ubanda-Hernandez challenges his 41-month sentence
imposed following his guilty-plea conviction for illegal reentry following
deportation, under 8 U.S.C. § 1326.             Ubanda maintains his sentence is
substantively unreasonable because it overstates the seriousness of his offense
and fails to take his personal circumstances into account.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50342    Document: 00512485547       Page: 2     Date Filed: 12/31/2013


                                   No. 13-50342

      As Ubanda concedes, review is for plain error under United States v.
Peltier; he preserves for possible further review the issue of whether an abuse
of discretion is the proper standard. 

, 391-92 (5th Cir. 2007). For
reversible plain error, Ubanda must show a clear or obvious forfeited error that
affected his substantial rights. See Puckett v. United States, 

, 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 

however, to show any error.
      In addition to preserving the issue of the correct standard of review,
Ubanda seeks to preserve other issues for review as well. He acknowledges his
other contentions, including that his within-Guidelines sentence should not be
afforded a presumption of reasonableness because Sentencing Guideline
§ 2L1.2 was not based on empirical data and national experience, are foreclosed
by this court’s precedent. See United States v. Duarte, 

, 529-31
(5th Cir. 2009).     Duarte also forecloses Ubanda’s contention that the
application of § 2L1.2 results in double counting because his prior convictions
were used in determining both his offense level and his criminal history
category. See 

court has rejected the claim that the offense
of illegal reentry is merely a trespass offense and is treated too harshly under
§ 2L1.2. United States v. Juarez-Duarte, 

, 212 (5th Cir. 2008)
(“Congress considers illegal reentry into the United States subsequent to a
conviction for an aggravated felony an extremely serious offense punishable by
up to twenty years in prison.”).
      Insofar as Ubanda maintains the district court failed to take into account
his personal history and characteristics, the court heard Ubanda’s mitigating
assertions, but determined those circumstances were insufficient to rebut the



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                               No. 13-50342

presumption of reasonableness that attached to his within-Guidelines
sentence. Ubanda’s disagreement with the district court’s evaluation of the
sentencing factors was not sufficient to rebut the presumption of
reasonableness. See United States v. Ruiz, 

, 398 (5th Cir. 2010)
(citation omitted).
      AFFIRMED.




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