### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 50737 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOSE ALBERTO VALLEJO

- LUNA , Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:12

- CR

- 1536

- 1

Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Jose Alberto Val l ejo

- Luna (Vallejo) appeals the 41

- month within

guidelines sentence imposed following his conviction for illegal reentry into the United States after having been deported. He concedes that sentences imposed within the Guidelines are presumptively reasonable but arg ues that he has rebutted the presumption because the district court made a clear error of judgment in balancing the 18 U.S.C. § 3553 factors and imposed a sentence

* Pursuant to 5 TH C IR

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 28, 2014 Lyle W. Cayce Clerk Case: 13-50737 Document: 00512609620 Page: 1 Date Filed: 04/28/2014No. 13

- 50737 that was greater than necessary to meet those factors. H e contends that his sentence overst ated the seriousness of his illegal reentry offense because, in applying U.S.S.G. § 2L1.2, the district court gave too much weight to old convictions . He argues further that the district court failed to give proper weight to his beneficent reason for re

- e ntering the country unlawfully or to the likelihood that he will not recidivate. Vallejo also argues that the presumption of reasonableness should not apply to his sentence because § 2L1.2 is not supported by empirical data , but he concedes that this argu ment is foreclosed by United States v. Duarte , 569 F.3d 528, 529

- 31 (5th Cir. 2009). Vallejo acknowledges that this court reviews for plain error when a defendant fails to object to the reasonableness of the sentence but contends that it should review for an abuse of discretion. Because he did not object to the substantive reasonableness of the sentence in the district court, review is limited to plain error. See United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007). The district court consider ed Vallejo’s request for a sentence at the bottom of the guidelines range and ultimately determined that a sentence in the middle of the range was appropriate under the circumstances and the § 3553(a) factors. Vallejo’s arguments that that § 2L1.2 lacks a n empirical basis and that his sentence overstates the seriousness of his criminal history and fails to take into account his personal history and characteristics are insufficient to rebut the presumption of reasonableness. See United States v. Gomez

- Herr era , 523 F.3d 554, 565

- 66 (5th Cir. 2008); United States v. Rodriguez , 523 F.3d 519, 526 (5th Cir. 2008). Therefore, Vallejo has failed to show that his 4 1

- month within

- guidelines sentence is substantively unreasonable, and there is no reversible plain er ror. AFFIRMED.

2 Case: 13-50737 Document: 00512609620 Page: 2 Date Filed: 04/28/2014