United States v. Jesus Ubanda-Hernandez , 551 F. App'x 109 ( 2013 )


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  •      Case: 13-50342      Document: 00512485547         Page: 1    Date Filed: 12/31/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 13-50342                             December 31, 2013
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    JESUS JOSE UBANDA-HERNANDEZ, also known as Jose Jesus Ubanda-
    Hernandez,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 3:12-CR-2874-1
    Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
    PER CURIAM: *
    Jesus Jose Ubanda-Hernandez challenges his 41-month sentence
    imposed following his guilty-plea conviction for illegal reentry following
    deportation, under 8 U.S.C. § 1326.             Ubanda maintains his sentence is
    substantively unreasonable because it overstates the seriousness of his offense
    and fails to take his personal circumstances into account.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50342    Document: 00512485547       Page: 2     Date Filed: 12/31/2013
    No. 13-50342
    As Ubanda concedes, review is for plain error under United States v.
    Peltier; he preserves for possible further review the issue of whether an abuse
    of discretion is the proper standard. 
    505 F.3d 389
    , 391-92 (5th Cir. 2007). For
    reversible plain error, Ubanda must show a clear or obvious forfeited error that
    affected his substantial rights. See Puckett v. United States, 
    556 U.S. 129
    , 135
    (2009). Even if he shows such reversible plain error, we have the discretion to
    correct the error, but should do so only if it seriously affects the fairness,
    integrity, or public reputation of the proceedings.         See 
    id. Ubanda fails,
    however, to show any error.
    In addition to preserving the issue of the correct standard of review,
    Ubanda seeks to preserve other issues for review as well. He acknowledges his
    other contentions, including that his within-Guidelines sentence should not be
    afforded a presumption of reasonableness because Sentencing Guideline
    § 2L1.2 was not based on empirical data and national experience, are foreclosed
    by this court’s precedent. See United States v. Duarte, 
    569 F.3d 528
    , 529-31
    (5th Cir. 2009).     Duarte also forecloses Ubanda’s contention that the
    application of § 2L1.2 results in double counting because his prior convictions
    were used in determining both his offense level and his criminal history
    category. See 
    id. Likewise, this
    court has rejected the claim that the offense
    of illegal reentry is merely a trespass offense and is treated too harshly under
    § 2L1.2. United States v. Juarez-Duarte, 
    513 F.3d 204
    , 212 (5th Cir. 2008)
    (“Congress considers illegal reentry into the United States subsequent to a
    conviction for an aggravated felony an extremely serious offense punishable by
    up to twenty years in prison.”).
    Insofar as Ubanda maintains the district court failed to take into account
    his personal history and characteristics, the court heard Ubanda’s mitigating
    assertions, but determined those circumstances were insufficient to rebut the
    2
    Case: 13-50342    Document: 00512485547   Page: 3   Date Filed: 12/31/2013
    No. 13-50342
    presumption of reasonableness that attached to his within-Guidelines
    sentence. Ubanda’s disagreement with the district court’s evaluation of the
    sentencing factors was not sufficient to rebut the presumption of
    reasonableness. See United States v. Ruiz, 
    621 F.3d 390
    , 398 (5th Cir. 2010)
    (citation omitted).
    AFFIRMED.
    3
    

Document Info

Docket Number: 13-50342

Citation Numbers: 551 F. App'x 109

Judges: Barksdale, Haynes, Jones, Per Curiam

Filed Date: 12/31/2013

Precedential Status: Non-Precedential

Modified Date: 8/31/2023