Case: 14-50971 Document: 00513001067 Page: 1 Date Filed: 04/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50971
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 10, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
MANUEL DE JESUS CHICAS-GUEVARA,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-862-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Manuel De Jesus Chicas-Guevara challenges his 30-month sentence
which was within the sentencing range for the advisory Sentencing Guidelines
and was imposed following his guilty-plea conviction for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326. In claiming his sentence
substantively unreasonable because it is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a), Chicas maintains his advisory
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50971
Guidelines-sentencing range is too severe because the reentry Guideline is not
based on empirical analysis, the Guidelines double-count his criminal history,
and they fail to account for the “international trespass” nature of his reentry
offense. He further claims the court failed to consider: his benign motive for
returning; his strong ties to the United States; and his substance abuse.
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 advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 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, 517 F.3d 751, 764 (5th Cir. 2008).
Chicas does not claim procedural error. Instead, as noted, he claims only that
his sentence is substantively unreasonable.
Conceding he failed to object to the reasonableness of his sentence in
district court, Chicas asserts plain-error review should not apply because no
objection is required to preserve the issue of the substantive reasonableness of
a sentence. He acknowledges, however, that this issue is foreclosed, and he
raises it only to preserve it for further possible review. E.g., United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); see also United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
Under the plain-error standard, Chicas must show a forfeited plain (clear
or obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, 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. Id.
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No. 14-50971
As he concedes, Chicas’ empirical-data contention is foreclosed. E.g.,
United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). This court has
also rejected Chicas’ international-trespass contention. E.g., United States v.
Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). (Again, he raises both claims
only to preserve them for further possible review.)
Additionally, Chicas’ within-Guidelines sentence is presumed
reasonable. E.g., United States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012)
(citation omitted). His general disagreement with the propriety of his sentence
and the court’s weighing of the § 3553(a) factors is insufficient to rebut that
presumption. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Further, the court considered Chicas’ claims in mitigation and rejected them.
E.g., United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008).
AFFIRMED.
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