Case: 16-50271 Document: 00513725129 Page: 1 Date Filed: 10/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50271 FILED
Summary Calendar October 19, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HUMBERTO ALONSO ONTIVEROS-PERALES,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-1618-1
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Humberto Alonso Ontiveros-Perales appeals his 18-month bottom-of-
the-Guidelines-range sentence, imposed following his guilty plea conviction for
being an alien possessing and exporting ammunition in interstate commerce,
in violation of 18 U.S.C. § 922(g)(5)(B) and 18 U.S.C. § 924(a)(2). Raising an
unpreserved challenge to the substantive reasonableness of his sentence,
Ontiveros contends the sentence is greater than necessary to meet the goals of
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-50271
sentencing in the light of the mitigating circumstances involved and his
exemplary personal and professional history.
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, 552 U.S. 38, 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, 517 F.3d 751, 764 (5th Cir. 2008).
Ontiveros sought a below-Guidelines sentence in the district court prior
to sentencing. Once the within-Guidelines sentence was imposed, however, and
as Ontiveros concedes, he did not object to its substantive reasonableness.
Therefore, review is only for plain error. E.g., United States v. Broussard, 669
F.3d 537, 546 (5th Cir. 2012). (Ontiveros maintains no objection was required,
including because he requested a sentence below the Guideline range. Because
our precedent requires such an objection, he presents this point to preserve it
for possible further review.)
Under plain-error review, Ontiveros must show a forfeited plain (clear
or obvious) error 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
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
Prior to sentencing, Ontiveros contended his life history, personal
characteristics, and especially the circumstances of the offense warranted a
lesser sentence. He explained he worked as a police investigator in Mexico for
eight years and advised the court he acquired the ammunition at issue for
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No. 16-50271
other officers and himself for target practice. He asserted he acquired the
ammunition at his own expense because his police department did not issue
ammunition for target practice. During sentencing, the court expressed
concern that some of the ammunition Ontiveros purchased was designed for
assault rifles, and that assault rifles are not typical of target practice.
The record reflects the court was aware of the information in the
presentence investigation report, considered the arguments and letters of
recommendation presented on Ontiveros’ behalf, entertained his allocution,
and made an individualized sentencing decision in light of the facts of the
proceeding. See Gall, 552 U.S. at 49–50. Ontiveros’ Guidelines sentence is
entitled to a presumption of reasonableness. His assertions the sentence failed
to reflect his personal history and characteristics or the mitigating
circumstances involved are insufficient rebuttal. See Rita v. United States, 551
U.S. 338, 347 (2007); United States v. Lopez–Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008). Ontiveros has not shown the court plainly erred in imposing the
sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
AFFIRMED.
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