Case: 15-51199      Document: 00513743586         Page: 1    Date Filed: 11/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 15-51199                              FILED
                                  Summary Calendar                     November 2, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE FIGUEROA-CRUZ, also known as Herminio Figueroa-Cruz,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:14-CR-1167-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jose Figueroa-Cruz appeals the 63-month sentence he received after
pleading guilty to illegal reentry. He argues that the sentence is greater than
necessary because U.S.S.G. § 2L1.2 lacks an empirical basis and produced too
high a guidelines range in his case due to its method of calculating a
defendant’s base offense level, as evidenced by the Sentencing Commission’s
proposed 2016 revisions to § 2L1.2.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51199

         We generally review whether a sentence is substantively reasonable
“under an abuse of discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007). Because Figueroa-Cruz did not raise this argument in the district
court, however, plain error review applies. See United States v. Preciado–
Delacruz, 801 F.3d 508, 511 (5th Cir. 2015), cert. denied, 136 S. Ct. 2007 (2016).
He therefore must show a forfeited error that is clear or obvious and that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). Upon such a showing, we may correct the error, but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
         We have rejected reasonableness challenges to illegal reentry sentences
based on claims that § 2L1.2 lacks an empirical basis. United States v. Duarte,
569 F.3d 528, 530–31 (5th Cir. 2009); see also United States v. Miller, 665 F.3d
114, 121 (5th Cir. 2011) (“[W]e will not reject a Guidelines provision as
‘unreasonable’ or ‘irrational’ simply because it is not based on empirical data
and even if it leads to some disparities in sentencing.”) (child pornography
case).
         Figueroa-Cruz also argues that his sentence is greater than necessary to
adequately deter him and does not reflect this being his first immigration
offense or his reason for reentering the country, to earn a living that would
support his family.       However, his properly calculated within-guidelines
sentence is presumed reasonable, and we will infer that the district court
“considered all the factors for a fair sentence set forth in the Guidelines.”
United States v. Jefferson, 751 F.3d 314, 322 (5th Cir. 2014) (internal quotation
marks and citation omitted). Assertions of benign motives and disagreement
with the district court’s weighing the need to deter future criminal conduct are
insufficient to rebut the presumption. See United States v. Gomez-Herrera, 523
F.3d 554, 565 (5th Cir. 2008); see also United States v. Malone, 828 F.3d 331,



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                                 No. 15-51199

342 (5th Cir. 2016) (“Though Appellants may disagree with how the district
court balanced the § 3553(a) factors, their argument that these factors should
have been weighed differently is not a sufficient ground for reversal.”).
      As Figueroa-Cruz has not shown that the district court plainly erred or
abused its discretion by sentencing him within the properly calculated
guidelines range of imprisonment, his sentence is AFFIRMED.




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