Case: 13-50355      Document: 00512553212         Page: 1    Date Filed: 03/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50355
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            March 7, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellee

v.

JOSE SANTOS-CORTEZ,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1492-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Santos-Cortez pleaded guilty to being unlawfully present in the
United States after removal. Santos challenges his within-Guidelines sentence
of, inter alia, 51-months’ imprisonment.               He contends his sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals under 18 U.S.C. § 3553(a). In that regard, he maintains the
district court gave too much weight to his previous convictions.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50355

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under 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, 

, 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. E.g., United States
v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008); United States v.
Villegas, 

, 359 (5th Cir. 2005).
      Santos does not claim procedural error. Instead, as noted, he maintains
his sentence was substantively unreasonable.          “A discretionary sentence
imposed within a properly calculated [G]uidelines ranges is presumptively
reasonable”. United States v. Campos-Maldonado, 

, 338 (5th Cir.
2008) (citations omitted).
      The parties dispute the applicable standard of review. Santos contends
he preserved his challenge by claiming his prior convictions were counted
multiple times in determining his Guidelines range, whereas the Government
asserts plain-error review applies because Santos did not object to his sentence
when it was imposed. In any event, we need not determine whether plain-
error review is appropriate because Santos’ claim fails even assuming the issue
was properly preserved.
      When sentencing a defendant, the district court must consider, inter alia,
the nature and circumstances of the offense; the defendant’s history and
characteristics; the seriousness of the offense; and the need to promote respect
for the law, provide just punishment, afford adequate deterrence, and protect
the public. 18 U.S.C. § 3553(a). The substantive reasonableness of a sentence
is determined by considering “the totality of the circumstances, granting



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                                 No. 13-50355

deference to the district court’s determination of the appropriate sentence
based on the § 3553(a) factors”. United States v. McElwee, 

, 337
(5th Cir. 2011) (citation and internal quotation marks omitted). For obvious
reasons, “the sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant”. Campos-

.
      As Santos acknowledges, for illegal reentry, the Guidelines and this
court’s precedent permit criminal history to be used to determine both the
offense level and the criminal-history category. See, e.g., United States v.
Duarte, 

, 529–30 (5th Cir. 2009); U.S.S.G. § 2L1.2, cmt. n.6. The
district court considered Santos’ contentions supporting a lesser sentence, but
found the 51-month sentence appropriate.          Santos fails to rebut the
presumption of reasonableness. See, e.g., United States v. Gomez-Herrera, 

, 565–66 (5th Cir. 2008).
      AFFIRMED.




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