Case: 16-50514      Document: 00513828507         Page: 1    Date Filed: 01/10/2017




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

                                    No. 16-50514                                FILED
                                  Summary Calendar                        January 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR VELARDO-BENITEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CR-13-1


Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
       Hector Velardo-Benitez appeals the sentence imposed for his conviction
for illegal reentry into the United States. He contends that his sentence is
substantively unreasonable because it is greater than necessary to accomplish
the sentencing goals under 18 U.S.C. § 3553(a). The district court sentenced
him to 46 months of imprisonment, which corresponded to the bottom of his
advisory guidelines range, and three years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50514

      The substantive reasonableness of a sentence is ordinarily reviewed
under an abuse-of-discretion standard, but plain error review applies here
because Velardo-Benitez did not object in the district court to his sentence as
substantively unreasonable. See United States v. Heard, 709 F.3d 413, 425
(5th Cir. 2013). Velardo-Benitez acknowledges as much, but he wishes to
preserve for further review the argument that the plain error standard should
not apply merely based on the absence of an objection to the substantive
reasonableness of the sentence upon its imposition.
      Because Velardo-Benitez’s sentence is within his advisory guidelines
range, his sentence is presumptively reasonable. See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).            The presumption of
reasonableness “is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Velardo-Benitez also wishes to preserve for further
review the argument that the presumption of reasonableness should not apply
to within-guidelines sentences calculated under U.S.S.G. § 2L1.2 because
§ 2L1.2 lacks an empirical basis. As conceded by him, such an argument is
foreclosed by our precedent. See United States v. Rodriguez, 660 F.3d 231, 232-
33 (5th Cir. 2011).
      Velardo-Benitez argues that his guidelines range was too high because
§ 2L1.2 lacks empirical support and effectively double counts a defendant’s
criminal history.     He further asserts that his sentence overstates the
seriousness of his illegal reentry offense, which he characterizes as an
international trespass; his motivation in returning to the United States was
assisting with his mother’s overwhelming medical expenses; and he presented



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                                No. 16-50514

a compelling argument that he would not return to the United States in the
future.
      We have rejected the argument that a sentence based on § 2L1.2 is
substantively unreasonable because § 2L1.2 lacks empirical support or
effectively double counts a defendant’s criminal history. See United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). Velardo-Benitez’s remaining
arguments concerning the § 3553(a) factors do not rebut the presumption of
reasonableness applicable to his sentence. See Gomez-Herrera, 523 F.3d at
565-66; United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008).
      The district court listened to his arguments for a lesser sentence but
found that a 46-month sentence, set to run consecutively to his 12-month
revocation sentence in a separate case, was appropriate. In doing so, the
district court specifically noted Velardo-Benitez’s criminal history, his prior
deportations and illegal reentries into the United States, and his continued
commission of crimes in recent years. “[T]he sentencing judge is in a superior
position to find facts and judge their import under § 3553(a) with respect to a
particular defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339
(5th Cir. 2008). Velardo-Benitez’s sentence was not an abuse of discretion,
much less plainly erroneous.
      To the extent that Velardo-Benitez seeks to raise a separate challenge to
the 12-month revocation sentence the district court imposed in another case,
that matter is not before us here because Velardo-Benitez’s notice of appeal in
this case did not encompass the revocation judgment.
      AFFIRMED.




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