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

No. 18

- 11454 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. MAGDALENO TORRES

- LOZANO , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18

- CR

- 72

- 1

Before STEWART, Chief Judge, and SMITH and O WEN , Circuit Judges. PER CURIAM: * Magdaleno Torres

- Lozano appeals the within

- guidelines sentence imposed following his guilty plea conviction for being an alien found in the United States after having been deported and removed previously. The district court sentenced Torres

- Lozano to 2 3 m onths of imprisonment and one year of supervised release. Torres

- Lozano contends that the district court’s reference to the dangerous combination of people illegally present in the United States

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set f orth in 5 TH C IR

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

### FILED May 30, 2019 Lyle W. Cayce Clerk Case: 18-11454 Document: 00514976526 Page: 1 Date Filed: 05/30/2019No. 18

- 11454

2 and driving while intoxicated (DWI) was an improper factor o n which to base his sentence. Based on the Government’s waiver of the timeliness bar, we consider the merits of this challenge despite the untimely notice of appeal. See United States v. Chapple , 847 F.3d 227, 228

- 29 (5th Cir. 2017). As Torres

- Lozano ac knowledges, his failure to object to the reasonableness of the sentence in the district court results in plain error review. See United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007). He preserves for further review his challenge to Peltier , whi ch remains controlling precedent in this circuit. See United States v. Whitelaw , 580 F.3d 256, 260 (5th Cir. 2009). To show the requisite plain error, Torres

- Lozano must demonstrate a clear or obvious forfeited error that affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If the party makes that showing, this court has the discret ion to correct the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks , brackets, and citation omitted). The burden of establishing entitlement to relief for plain erro r is on the party claiming it. United States v. Dominguez Benitez , 542 U.S. 74, 82 (2004). Meeting all four prongs of the plain error standard “is difficult, as it should be.” Puckett , 556 U.S. at 135 (internal quotation marks and citation omitted). Torres

- Lozano has not shown that any error was clear or obvious because he has not cited to any binding precedent showing that the district court’s alleged reliance on the combination of his immigration status and DWI was an improper factor. See United St ates v. Rodriguez

- Parra , 581 F.3d 227, 23 0

- 3 1 (5th Cir. 2009). It is also not clear or obvious from the record that the district court gave significant weight to Torres

- Lozano’s illegal status

. See United States v. Heard , 709 F.3d 413, 424

- 24 (5th Cir. 2 013). Given the permissible factors relied upon by the sentencing court, Torres

- Lozano also Case: 18-11454 Document: 00514976526 Page: 2 Date Filed: 05/30/2019No. 18

- 11454

3 cannot show that any error affected his substantial rights. See Peltier , 505 F.3d at 393

- 94; United States v. Jones , 444 F.3d 430, 438 (5th Cir. 2006). According ly, the district court’s judgment is AFFIRMED. Case: 18-11454 Document: 00514976526 Page: 3 Date Filed: 05/30/2019