### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20658 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. LUIS ANDRADE TORRES, also known as Luis Torres Andrade, also known as Luis Andrade-Torres, also known as Rafael Andrade, also k n o w n a s Luis Hernandez, also known as Luis Andreade,Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-307-1

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant- Ap p ell ant Lui s An dr a d e T o rr e s ( An dr a d e) appeals the sentence imposed for his conviction for illegal reentry. He was sentenced within the guidelines range to 46 months of imprisonment with a one-month credit for the time he spent in immigration custody and two years of supervised release. He contends that his sentence is substantivel y u n reasonable because the district U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May2, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20658 Document: 00511841886 Page: 1 Date Filed: 05/02/2012No. 11-20658

court failed to give appropriate weight to the remoteness of his most significant criminal history, his subsequent rehabilit ati o n , a n d th e f act that he was arrested

on an outbound flight to Mexico. He also claims that the district court gave too much weight to his other c r iminal history and traffic citations and improperly considered his traffic-related arrests. We review Andrade’s claim of error regarding the consideration of his arrests for plain error, as Andrade’s general objection to the reasonableness of his sentence was not “sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal , 578 F.3d 270, 272 (5th Cir. 200 9). The remainder of his claim of error is preserved. To show plain error, Andrade must demonstrate that the error was clear

or obvious and affects his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error but only if it “‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” Id. (alteration in original) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)). We review the substantive reasonable n ess of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). A sentenc e imposed within a properly calculated guidelines range i s presumed to be reasonable. United States v. Ca m

p o s -Maldonado , 531 F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted only on a showing that the sentence does no t a c c ount for a factor that should receive significant weight, it gives significant weight to

an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United State s v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Andrade has not s h o w n that the weight the district court gave to his criminal conv i c t i o n s and traffic citations, rehabilitation, and arrest on an outbound flight to Mexico represents a clear error of judgment. “[T]he staleness
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o f a prior conviction used in the proper calculation of a guidelines-range sentenc e does not render a sentence substantively unreasonable and does not destroy the presumption of reasonableness that attaches to such sentences.” United States

v. Rodriguez , 660 F

. 3 d 2 3 1 , 2 3 4 (5th Cir. 2011). The fact that Andrade was arrested on an o u tb ound flight to Mexico does not indicate whether Andrade intended to leave the United States permanently. Andrade’s disagreement with the weight given by t h e d i strict court to his other criminal history and rehabilitative efforts is insufficient to rebut the presumption of reasonableness. See Gall , 552 U.S. at 51. It was plainly erroneous, however, for the district court to consider Andrade’s prior arrests when imposing se n t e n c e , given that there was insufficient indicia of reliability. See United States v . J o h n s on , 648 F.3d 273, 277-78 (5th Cir. 2011). As to whether the error affected his substantial rights, however, Andrade offers no argument. Therefore, he has not met his burden of demonstrating that there is a reason ab l e p rob ab ility that he would have received

a lower sentence had the district court n o t c o n s i d e red the arrests. Cf. United States v. Sandlin , 589 F.3d 749, 757 (5th Cir. 200 9). Andrade raises one additional issue, which he acknowledges is foreclosed by our precedent, to preserve for furt h e r r e v iew. He contends that the presumption of reasonableness should not be ap p l i e d t o his sentence because § 2L1.2, t h e illegal reentry Guideline, lacks an empirical basis. We have consistently rejected Andrade’s argument, concluding that Kimbrough v. United States , 552 U.S. 85 (2007), does not question the presumption of reasonableness and doe s n ot require district or appellate courts to independently analyze the empirical grounding behind each individual gu i deline. See United States v. Duarte , 569 F.3d 528, 530-31 (5th Cir. 2009); United States v. MondragonSantiago , 564 F.3d 357, 366-67 (5th Cir. 2 009). The record does reveal a clerical error in the judgment with respect to the description of the offense. See F E D
. R. C R I M
. P. 3 6

. T h e judgment should be
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modified to reflect that Andrade was convicted of illegal reentry by a previously deported alien after a f e lony conviction and that he was sentenced under 8 U.S.C. § 1326(b)(1). The district court’s judgment is AFFIRMED. This matter is REMANDED for correction of the clerical error p u r s u a n t to Federal Rule of Criminal Procedure 36.

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