IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50950 

c/w No. 11-50960

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CONRADO MINORA-ESCARCEGA,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-144-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

In these consolidated appeals, Conrado Minora-Escarcega (Minora) 

challenges (1) the sentence imposed following his conviction for being found

unlawfully in the United States following deportation in violation of 8 U.S.C.

§ 1326 and (2) the sentence imposed following the revocation of a prior term of

supervised release. As to the former, Minora argues that the 30-month sentence

of imprisonment was unreasonable because it failed to account for his personal

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-50950 

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history. He contends that his alcoholism accounts for much of his criminal

history, which includes several convictions for driving while intoxicated (DWI). 

Minora argues that the sentence overemphasizes moral culpability given that

he makes poor choices due to his addiction.

As Minora acknowledges, 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 contends, however, that Peltier

was wrongly decided and that, given his request in the district court for a

sentence at the bottom of the guideline range, no further objection was necessary

to preserve his reasonableness challenge. Peltier, which remains controlling

precedent in this circuit, forecloses this argument, which he raises to preserve

the issue for further review.

To show the requisite plain error, Minora must demonstrate a clear or

obvious forfeited error that affected his substantial rights. See Puckett v. United

States, 556 U.S. 129, 135 (2009). This court has discretion to correct the error

but only if it seriously affects the fairness, integrity, or public reputation of the

proceedings. Id.

“A discretionary sentence imposed within a properly calculated guidelines

range is presumptively reasonable.” United States v. Campos-Maldonado, 531

F.3d 337, 338 (5th Cir. 2008). Minora, again preserving an issue for further

review, argues that the presumption should not apply to his within-guidelines

sentence because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not

empirically grounded. As Minora concedes, his challenge to the application of

the presumption of reasonableness is foreclosed. See United States v. Duarte,

569 F.3d 528, 529-30 (5th Cir. 2009).

A defendant’s mere belief that the mitigating factors presented for the

court’s consideration at sentencing should have been balanced differently does

not suffice to disturb the presumption of reasonableness. See United States v.

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Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). The district court

determined that there was a need to protect the public from further crimes by

Minora in view of his numerous DWI convictions, several of which had resulted

in traffic accidents, and his willingness to illegally reenter the United States. 

Minora advances no persuasive reason for this court to disturb the district

court’s choice of sentence. He has not rebutted the presumption of

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

Accordingly, he has not shown plain error. See Puckett, 556 U.S. at 135.

Minora also challenges the reasonableness of the consecutive 24-month

revocation sentence imposed by the district court. He argues that the sentence,

which was within the advisory guideline range, see U.S.S.G. § 7B1.4(a), was

plainly unreasonable given that his illegal reentry offense was nonviolent and

did not indicate that he posed a danger to the public. He again asserts that his

substance abuse problem explains the majority of his criminal history, and he

contends that there was no need for the district court to structure its revocation

sentence to deter him from returning to the United States.

Generally, we review revocation sentences under the “plainly

unreasonable” standard. See United States v. Miller, 634 F.3d 841, 843 (5th

Cir.), cert. denied, 132 S. Ct. 496 (2011). Minora argues that the plainly

unreasonable standard should not apply and seeks to preserve the issue for

further review. Because Minora failed to object to any aspect of his revocation

sentence, this court’s review is for plain error. See United States v. Whitelaw,

580 F.3d 256, 259-60 (5th Cir. 2009).

A presumption of reasonableness applies to revocation sentences that are

within the advisory range. See United States v. Lopez-Velasquez, 526 F.3d 804,

809 (5th Cir. 2008). Minora fails to rebut the presumption of reasonableness 

and has not demonstrated plain error. See Puckett, 556 U.S. at 135.

AFFIRMED.

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