IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50342

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JESUS JOSE UBANDA-HERNANDEZ, also known as Jose Jesus UbandaHernandez,

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.

United States Court of Appeals

Fifth Circuit

FILED

December 31, 2013

Lyle W. Cayce

Clerk

 

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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 

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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.

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