IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50609

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL CORONA, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-682

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Daniel Corona, Jr., appeals the sentence imposed following his guilty 

plea conviction for importation into the United States of five kilograms or more 

of cocaine. The statutory minimum for this offense is ten years, but Corona 

qualified for the safety valve, which rendered the statutory minimum 

inapplicable and resulted in a guidelines range of 87-108 months. The district 

court imposed a prison term of 96 months.

* 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

March 3, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50609

Corona argues that the within-guidelines sentence was substantively 

unreasonable because it was greater than necessary to effectuate the 

sentencing goals of 18 U.S.C. § 3553(a). More specifically, he contends that the 

Guideline under which he was sentenced is not empirically based and that his 

guidelines range was improperly driven by drug quantity when he did not 

know the quantity of drugs he was transporting. He further asserts that the 

sentence was greater than necessary to provide deterrence because he was 59 

years old at the time of sentencing, recidivism is lower for older defendants,

and he was a first-time offender who had only limited involvement in a 

nonviolent offense. He maintains that the district court improperly considered 

his drug abuse as an aggravating factor because treatment for his substance 

abuse could further reduce the risk of recidivism.

In the district court, Corona did not object to the substantive 

reasonableness of the sentence. Corona argues that such an objection is not 

required to preserve the substantive reasonableness of a sentence for review, 

but he acknowledges that this argument is foreclosed by circuit precedent and 

raises the issue to preserve it for further review. Accordingly, we review the 

substantive reasonableness of the sentence for plain error. See United States 

v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error standard, 

Corona must show a clear or obvious forfeited error that affected his 

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If 

Corona makes such a showing, we have discretion to correct the error but only 

if the error seriously affects the fairness, integrity, or public reputation of the 

proceedings. See id.

“[A] sentence within a properly calculated Guideline range is 

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th 

Cir. 2006). The lack of an empirical basis for the Guideline under which 

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No. 14-50609

Corona was sentenced does not disturb the presumption of reasonableness. See 

United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). The fact that 

this court “might reasonably have concluded that a different sentence was 

appropriate is insufficient to justify reversal of the district court.” Gall v. 

United States, 552 U.S. 38, 51 (2007). The district court had before it both 

mitigating and aggravating factors. The district court balanced these factors, 

and it determined that a sentence near the middle of the guidelines range was 

appropriate. Considering the totality of the circumstances, as we must, see 

Gall, 552 U.S. at 51, Corona has not shown that the sentence was plainly 

erroneous. See Rita v. United States, 551 U.S. 338, 359-60 (2007); Peltier, 505 

F.3d at 392-94.

AFFIRMED.

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 Case: 14-50609 Document: 00512955107 Page: 3 Date Filed: 03/03/2015