Case: 13-40267 Document: 00512480708 Page: 1 Date Filed: 12/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40267 December 23, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JUAN FRANCISCO NORIEGA-ALANIS,
Also Known as Juan Francisco Alanis-Noriega,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-148-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40267 Document: 00512480708 Page: 2 Date Filed: 12/23/2013
No. 13-40267
Juan Noriega-Alanis appeals the within-guideline, seventy-seven-month
sentence he received following his guilty plea of being an alien found unlaw-
fully present in the United States after having been previously deported, in
violation of 8 U.S.C. § 1326. For the first time on appeal, he contends that the
district court’s consideration of his most recent arrest for assault renders his
sentence procedurally and substantively unreasonable. He also avers that the
presumption of reasonableness should not attach to his within-guideline sen-
tence because U.S.S.G. § 2L1.2 lacks an empirical basis. He concedes, however,
that the argument is foreclosed; he seeks only to preserve it for further review.
See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011); United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
The newly raised procedural- and substantive-unreasonableness argu-
ments are reviewed for plain error only. See United States v. Jones, 484 F.3d
783, 792 (5th Cir. 2007); see also United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). To establish plain error, Noriega-Alanis must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court may exercise its discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
See id.
Noriega-Alanis contends that the district court erroneously considered
his “bare arrest record.” To the contrary, the presentence report (“PSR”) not
only listed the alleged offense for which he was arrested but included addi-
tional information as to the facts underlying the arrest and why prosecution
did not result. See United States v. Harris, 702 F.3d 226, 230-31 & n.1 (5th
Cir. 2012); cf. United States v. Windless, 719 F.3d 415, 418, 420-21 (5th Cir.
2013). Noriega-Alanis did not object to the PSR or offer rebuttal evidence. The
2
Case: 13-40267 Document: 00512480708 Page: 3 Date Filed: 12/23/2013
No. 13-40267
court therefore did not plainly err in considering the information in the PSR
concerning the arrest when denying the request for a downward variance. See
Harris, 702 F.3d at 231; see also Puckett, 556 U.S. at 135.
Because the sentence is within the guideline range, it is presumptively
reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Noriega-Alanis urges, however, that the district court’s consideration of his
bare arrest record constituted consideration of an improper factor and thus
that the presumption of reasonableness has been rebutted.
The district court considered Noriega-Alanis’s personal history and the
circumstances of his illegal-reentry offense, balancing those factors against his
lengthy and violent criminal past and denying his request for a sentence below
the guideline range based in part on the court’s rejection of the claim that he
was a changed man, as evidenced by the fact that he was recently arrested for
assaulting for hitting his pregnant wife. The court expressly gave more weight
to other 18 U.S.C. § 3553(a) factors, namely Noriega-Alanis’s significant crim-
inal history and the need to protect the public from future crimes and to pro-
vide deterrence. The court did not plainly err in considering the prior arrest
when imposing a sentence within the guideline range, and Noriega-Alanis has
failed to rebut the presumption of reasonableness that is accorded a within-
guideline sentence. See Harris, 702 F.3d at 301; Cooks, 589 F.3d at 186; see
also Puckett, 556 U.S. at 135.
Accordingly, the judgment is AFFIRMED.
3