Case: 15-50167       Document: 00513276197         Page: 1     Date Filed: 11/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-50167
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         November 18, 2015
Cons. w/ No. 15-50173
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN ANTONIO MORENO-PADILLA,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:14-CR-2085-1
                             USDC No. 3:15-CR-135-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Antonio Moreno-Padilla challenges the substantive reasonableness
of his within-Guidelines sentences for illegal reentry after removal, in violation
of 8 U.S.C. § 1326, and for the related revocation of his prior term of supervised
release. In contending the combined 58-month sentence was greater than


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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necessary to meet the goals of 18 U.S.C. § 3553(a), Moreno maintains the
presumption of reasonableness should not apply because the sentencing
ranges:   lacked an empirical basis; double-counted his criminal history;
overstated the seriousness of his illegal reentry (which he asserts was,
fundamentally, only a non-violent, international trespass); and failed to reflect
his personal history and characteristics.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection, as in this instance, 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, 

,
48–51 (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). As
noted, Moreno contests only the substantive reasonableness of his sentences;
he does not claim procedural error.
      As for Moreno’s 46-month sentence imposed for his illegal reentry, it was
within the advisory-Guideline range (at the low end after a 12-level
enhancement for a prior crime-of-violence conviction). Therefore, it is
presumptively reasonable. E.g., United States v. Alonzo, 

, 554
(5th Cir. 2006).
      First, the presumption of reasonableness is not overcome simply because
the advisory Guideline is not empirically based; Moreno concedes this issue is
foreclosed. See United States v. Duarte, 

, 529–31 (5th Cir. 2009).
Sentencing is traditionally left “to the discretion of district courts, [which are]
close to the ground and more cognizant of the details of offender and offense”.



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Additionally, Moreno’s contentions that double-counting prior
convictions necessarily renders a sentence unreasonable, and that the
Guidelines overstate the seriousness of illegal reentry, are also foreclosed. See

United States v. Aguirre-Villa, 

, 683 (5th Cir. 2006).
(He presents these three foreclosed issues only to preserve them for possible
future review.) And, the benign motive Moreno provided for returning to the
United States, to visit his terminally ill mother, is insufficient to rebut the
presumption. See United States v. Gomez-Herrera, 

, 565–66 (5th
Cir. 2008). The court considered, but rejected, Moreno’s attempt to minimize
the seriousness of his illegal reentry. Finally, Moreno does not demonstrate
the court failed to consider any significant factors, gave undue weight to any
improper factors, or clearly erred in balancing the sentencing factors. See
United States v. Cooks, 

, 186 (5th Cir. 2009).
      Moreno also fails to show that his 24-month revocation sentence, of
which 12 months are to be served concurrently with his illegal-reentry
sentence, was substantively unreasonable. (Because there is no substantive
unreasonableness, we need not reach whether Moreno’s revocation was
“plainly unreasonable” under 18 U.S.C. § 3742(a). See United States v. Miller,

, 843 (5th Cir. 2011). Nor does Moreno make that claim.)
      Moreover, the court acted within its discretion in ordering the sentences
to be served, in part, consecutively. See United States v. Whitelaw, 

, 260 (5th Cir. 2009); see also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & cmt.
n.4. In addition, Moreno’s sentence fell within the advisory-sentencing range,
and was consistent with the Guidelines’ policy on consecutive sentences;
therefore, it also is entitled to a presumption of reasonableness. See United
States v. Candia, 

, 472–73 (5th Cir. 2006). Moreno “makes no
independent argument” concerning his revocation sentence. United States v.



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Lopez, 

, 808–09 (5th Cir. 2008). For the above-discussed reasons,
he fails to show the court abused its discretion by imposing the in-part
consecutive sentence, and to rebut the presumption of reasonableness. See