Case: 16-50861 Document: 00513908404 Page: 1 Date Filed: 03/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50861 FILED
Summary Calendar March 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JACINTO CARLOS-BANUELOS, also known as Jacinto Banuelos, also known
as Jacinto Carlos Banuelos, also known as Jacinto Carlos, also known as Jose
Murillo-Hernandez, also known as Candy Casiano, also known as Jacinto
Banuelos-Carlos, also known as Jacinto Carlo-Banuelos, also known as Jose
Hernandez-Murillo, also known as Carlos Candy Casiano,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CR-477-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jacinto Carlos-Banuelos appeals the sentence for his conviction of being
found in the United States without permission, following removal, in violation
of 8 U.S.C. § 1326(a), (b)(2). He contends his 57-months’ term of imprisonment,
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-50861
imposed pursuant to the advisory Sentencing Guidelines, is substantively
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a).
Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). 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).
As Carlos did not object to the reasonableness of his sentence in district
court, review is only for plain error. See United States v. Peltier, 505 F.3d 389,
391–92 (5th Cir. 2007). And, his within-Guidelines sentence is subject to a
presumption of reasonableness. See United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008) (per curiam). When a district court imposes a
within-Guidelines sentence, we infer it “has considered all the factors for a fair
sentence”. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). (Noting
a circuit split, Carlos asserts an objection to the reasonableness of his sentence
was not required to preserve his contention for appeal. He also maintains the
presumption of reasonableness should not apply because Guideline § 2L1.2 is
not derived from empirical data. He concedes his contentions are foreclosed
and presents them for possible future review. See Peltier, 505 F.3d at 391–92;
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).)
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No. 16-50861
Carlos contends his sentence is unreasonably long because Guideline
§ 2L1.2 lacks an empirical basis, as discussed above, and places too heavy an
emphasis on a defendant’s criminal history. Our court has rejected that
argument. See Duarte, 569 F.3d at 529–31; Mondragon-Santiago, 564 F.3d at
366–67. Carlos also notes this is his first illegal-reentry offense, and claims if
he returns to Mexico, he will have family support, a job, and a place to live.
The court considered Carlos’ offense, mitigation contentions, advisory
Guidelines sentencing range, presentence investigation report, and criminal
history. Carlos’ disagreement with the court’s weighing of the Guideline
§ 3553(a) factors is insufficient to rebut the above-discussed presumption of
reasonableness. See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
He has not established the requisite plain (clear or obvious) error.
AFFIRMED.
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