Case: 13-50448       Document: 00512602988         Page: 1     Date Filed: 04/21/2014




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

                                     No. 13-50448                                FILED
                                   Summary Calendar                          April 21, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

LEONEL PERSONA-DEVORA, also known as Martin Torres Torres, also
known as Valentin Arujo Lopez, also known as Roberto Vargas Garcia,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2852-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Leonel     Persona-Devora         appeals     the     sentence      of       21-months’
imprisonment imposed after his guilty-plea conviction for illegal reentry
following deportation, in violation of 8 U.S.C. § 1326 (reentry of removed
aliens).    He contends his within-Guidelines sentence is substantively
unreasonable because it is greater than necessary to satisfy the sentencing



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-50448     Document: 00512602988      Page: 2    Date Filed: 04/21/2014


                                  No. 13-50448

goals of 18 U.S.C. § 3553(a). Along that line, he contends: the sentence is too
severe because his offense was, at most, an international trespass; his reason
for reentry, his daughter’s request that he return to help care for his other
children, mitigates his offense and outweighs his criminal history; and, there
are additional mitigating facts—he has lived in the United States for much of
his adult life and he suffers from alcoholism and gout.
      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 Guidelines-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). Persona does not
claim procedural error.      As noted, he claims only that his sentence is
substantively unreasonable.
      “A discretionary sentence imposed within a properly calculated
guidelines range is presumptively reasonable.”         United States v. Campos-
Maldonado, 

, 338 (5th Cir. 2008) (citations omitted). Although
Persona contends a sentence imposed under the illegal-reentry Guideline
should not be accorded that presumption because it is not empirically based,
he concedes this contention is foreclosed by this court’s precedent; he raises it
only to preserve the issue for possible further review. See United States v.
Duarte, 

, 529–30 (5th Cir. 2009).
      The record reflects the district court had an adequate basis for the
sentence imposed.       It considered the presentence investigation report,
Persona’s allocution, his extensive criminal history, and the purposes of



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                                  No. 13-50448

sentencing as expressed in § 3553(a).       The court acknowledged Persona’s
reasons for return, but explained it could not overlook Persona’s lengthy
criminal history. Further, the court noted it relied on Persona’s personal
history and characteristics, as well as the nature and circumstances of his
offense, in setting the sentence. We do not require a “robotic” recitation of each
factor under §3553(a). United States v. Smith, 

, 707 (5th Cir.
2006).
      This court has rejected repeatedly the contention that the Guidelines
overstate the seriousness of illegal reentry because, according to Persona, it is
simply an international trespass offense. E.g., United States v. Juarez-Duarte,

, 212 (5th Cir. 2008). Persona has not shown the court failed to
consider a significant factor, gave significant weight to an irrelevant factor, or
made a clear error of judgment in balancing the § 3553(a) factors. See, e.g.,
United States v. Cooks, 

, 186 (5th Cir. 2009). Rather, he disagrees
with its weighing of those factors and asks this court to reevaluate the decision.
Given the deference due to a district court’s assessment of the § 3553(a) factors
and its sentencing decision, Persona has not shown his sentence is
substantively unreasonable.
      AFFIRMED.




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