IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40267

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

JUAN FRANCISCO NORIEGA-ALANIS,

Also Known as Juan Francisco Alanis-Noriega,

Defendant−Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-148-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

* 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 23, 2013

Lyle W. Cayce

Clerk

 

 Case: 13-40267 Document: 00512480708 Page: 1 Date Filed: 12/23/2013
No. 13-40267

Juan Noriega-Alanis appeals the within-guideline, seventy-seven-month 

sentence he received following his guilty plea of being an alien found unlawfully present in the United States after having been previously deported, in 

violation of 8 U.S.C. § 1326. For the first time on appeal, he contends that the 

district court’s consideration of his most recent arrest for assault renders his 

sentence procedurally and substantively unreasonable. He also avers that the 

presumption of reasonableness should not attach to his within-guideline sentence because U.S.S.G. § 2L1.2 lacks an empirical basis. He concedes, however, 

that the argument is foreclosed; he seeks only to preserve it for further review. 

See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 2011); United 

States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

The newly raised procedural- and substantive-unreasonableness arguments are reviewed for plain error only. See United States v. Jones, 484 F.3d 

783, 792 (5th Cir. 2007); see also United States v. Peltier, 505 F.3d 389, 391-92 

(5th Cir. 2007). To establish plain error, Noriega-Alanis must show a forfeited 

error that is clear or obvious and that affects his substantial rights. See Puckett 

v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this 

court may exercise its discretion to correct the error but only if it seriously 

affects the fairness, integrity, or public reputation of judicial proceedings. 

See id.

Noriega-Alanis contends that the district court erroneously considered 

his “bare arrest record.” To the contrary, the presentence report (“PSR”) not 

only listed the alleged offense for which he was arrested but included additional information as to the facts underlying the arrest and why prosecution 

did not result. See United States v. Harris, 702 F.3d 226, 230-31 & n.1 (5th 

Cir. 2012); cf. United States v. Windless, 719 F.3d 415, 418, 420-21 (5th Cir. 

2013). Noriega-Alanis did not object to the PSR or offer rebuttal evidence. The 

2

 Case: 13-40267 Document: 00512480708 Page: 2 Date Filed: 12/23/2013
No. 13-40267

court therefore did not plainly err in considering the information in the PSR 

concerning the arrest when denying the request for a downward variance. See 

Harris, 702 F.3d at 231; see also Puckett, 556 U.S. at 135.

Because the sentence is within the guideline range, it is presumptively 

reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

Noriega-Alanis urges, however, that the district court’s consideration of his 

bare arrest record constituted consideration of an improper factor and thus 

that the presumption of reasonableness has been rebutted. 

The district court considered Noriega-Alanis’s personal history and the 

circumstances of his illegal-reentry offense, balancing those factors against his 

lengthy and violent criminal past and denying his request for a sentence below 

the guideline range based in part on the court’s rejection of the claim that he 

was a changed man, as evidenced by the fact that he was recently arrested for 

assaulting for hitting his pregnant wife. The court expressly gave more weight 

to other 18 U.S.C. § 3553(a) factors, namely Noriega-Alanis’s significant criminal history and the need to protect the public from future crimes and to provide deterrence. The court did not plainly err in considering the prior arrest 

when imposing a sentence within the guideline range, and Noriega-Alanis has 

failed to rebut the presumption of reasonableness that is accorded a withinguideline sentence. See Harris, 702 F.3d at 301; Cooks, 589 F.3d at 186; see 

also Puckett, 556 U.S. at 135.

Accordingly, the judgment is AFFIRMED.

3

 Case: 13-40267 Document: 00512480708 Page: 3 Date Filed: 12/23/2013