IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 known as 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-AppellantLuis AndradeTorres (Andrade) 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 substantively unreasonable because the district

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 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.

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

court failed to give appropriate weight to the remoteness of his most significant

criminal history, his subsequent rehabilitation, and the fact that he was arrested

on an outbound flight to Mexico. He also claims that the district court gave too

much weight to his other criminal 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. 2009). 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 reasonableness of a sentence for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence imposed

within a properly calculated guidelines range is presumed to be reasonable. 

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). “The

presumption is rebutted only on a showing that the sentence does not account

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 States v. Cooks, 589 F.3d 173, 186 (5th

Cir. 2009).

Andrade has not shown that the weight the district court gave to his

criminal convictions and traffic citations, rehabilitation, and arrest on an

outbound flight to Mexico represents a clear error of judgment. “[T]he staleness

2

Case: 11-20658 Document: 00511841886 Page: 2 Date Filed: 05/02/2012
No. 11-20658

of a prior conviction used in the proper calculation of a guidelines-range sentence

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.3d 231, 234 (5th Cir. 2011). The fact that Andrade was

arrested on an outbound flight to Mexico does not indicate whether Andrade

intended to leave the United States permanently. Andrade’s disagreement with

the weight given by the district 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 sentence, given that there was

insufficient indicia of reliability. See United States v. Johnson, 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 reasonable probability that he would have received

a lower sentence had the district court not considered the arrests. Cf. United

States v. Sandlin, 589 F.3d 749, 757 (5th Cir. 2009).

Andrade raises one additional issue, which he acknowledges is foreclosed

by our precedent, to preserve for further review. He contends that the

presumption of reasonableness should not be applied to his sentence because

§ 2L1.2, the 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 does not require district or appellate courts to independently analyze the

empirical grounding behind each individual guideline. 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. 2009).

The record does reveal a clerical error in the judgment with respect to the

description of the offense. See FED. R. CRIM. P. 36. The judgment should be

3

Case: 11-20658 Document: 00511841886 Page: 3 Date Filed: 05/02/2012
No. 11-20658

modified to reflect that Andrade was convicted of illegal reentry by a previously

deported alien after a felony 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 pursuant to Federal Rule of Criminal

Procedure 36.

4

Case: 11-20658 Document: 00511841886 Page: 4 Date Filed: 05/02/2012