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 Vallejo-Luna (Vallejo) appeals the 41-month withinguidelines 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 argues 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 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.

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50737 Document: 00512609620 Page: 1 Date Filed: 04/28/2014
No. 13-50737

that was greater than necessary to meet those factors. He contends that his 

sentence overstated 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-entering 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 argument 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 considered 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 an 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-Herrera, 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 41-month within-guidelines sentence is substantively 

unreasonable, and there is no reversible plain error. 

AFFIRMED.

2

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