### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40893

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. BLAS CRUZ U RBINA, also known as Blas Cruz, also known as Bla Cruz, also known as Francisco U. Cruz, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-236-1

Before JOLLY, JONES, and BARKSDALE, Circuit Judges. PER CURIAM: * Blas Cruz U rbina (Cruz) appeals th e 6 0

- m o nth s e nt e n c e i m p o s e d following his guilty-plea conviction for attempted illegal reentry after d e p o r t ation, in violation o f 8 U.S.C. § 1326. He contends h is sentence above the advisory Sentencing Guidelines range of eight to 14 months was both procedurally and substantively unreasonable. Although post- Booker , the Guidelines are advisory only, and a p roperly preserved objection to a n u lti m at e s e nt e n c e i s r evi ewed for reasonableness under U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 21, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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an abuse-of-discretion s tandard, the district court must still p roperly calculate the G uideline-sentencing r ange for use in d ec i d i n g o n the sentence t o impose. Gall v. United States , 552 U.S. 38, 51 (2007). I n t hat respect, f or issues preserved in district court, its application of the Guidelines is r eviewed de novo ; its factual findings, only for clear error. See, e.g. , United Stat e s v. Cisneros-Gutierrez , 5 17 F .3d 751, 764 ( 5th Cir. 2 008); United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). Along that line, because Cruz did not preserve his objection that the court erred procedurally by basing his sentence on claimed erroneous factual findings, inferences, a nd speculation, the objection is reviewed only for plain error. Under that standard of review, Cruz must show a clear or obvious forfeited error that affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). Even if he shows such reversible plain error, we have the discretion to correct the error, b u t s h o uld do so only if i t seriously affects the fairness, integrity, or public reputation of the proceedings. See id. In plain-error r eview, “questions of fact c a p ab l e o f r e s o l u ti o n by the district court c a n never constitute plain error”. See United St a t e s v . Ch ung , 261 F.3d 536, 539 ( 5 t h Cir. 2001) (citation a nd internal quotation marks omitted). Accordingly, Cruz’ challenges to the factual findings and inferences b y the court, not objected to at sentencing, cannot constitute plain error. See id. Even assuming arguendo the court’s findings and infe r e n c e s merit

an a l y s i s , t h ere was no reversible plain error. The court w as within its wide discretion in rejecting Cruz’ assertions he was supportive o f his wife and family,

see United States v . Cantu-Ramirez , 6 69 F.3d 6 19, 6 28 (5th C ir.), cert. denied , 133 S. Ct. 247 (2012), and its inference Cruz’ family may not want to have contact with him was plausible in the l ight of the record as a whole. See United States v. Coleman , 609 F.3d 6 99, 708 (5th Cir. 2010). Finally, given the court’s stated c o n c e r n s regarding the seriousness of Cruz’ prior unscored c onvictions, the light sentences he received for his previous crimes, repeated reentry into the
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United S tates following p rior deportations, and r ecent c onvictions for theft and driving w hile intoxicated (DWI), there i s nothing in the record to suggest, absent the court’s erroneous determination his p rior Texas DWI offense constituted a crime of violence, s ee U nited States v. Chapa-Garza , 243 F.3d 9 21, 927 (5th Cir. 2001) (holding Texas felony DWI is not a crime of violence), that he would have

r e ceived a lesser sentence. See Puckett, 556 U.S. at 135; cf. United States v . Chandler , __ F.3 d __, 2013 WL 5508139, a t *4 (5th C ir. 4 Oct. 2013) (vacating and r e manding 127-month variance where “we [could not] confidently say that the district court w ould have imposed the same sentence without reliance on [an improper] factor”) (citations and internal quotation marks omitted). We need not c o n s i der the p ropriety of the sentence a s a n upward departure, pursuant to Guideline § 4A1.3, because the sentence may be affirmed

on the c o urt’s alternate basis as an upward variance justified by the 18 U.S.C. § 3 553(a) sentencing factors. See United States v. Bonilla , 524 F

. 3d 6 47, 656-59 (5th Cir. 2008). On that point, Cruz maintains the court erred procedurally by failing to a dequately explain the extent of the v ariance. In the light of this record, the court relied on proper factors and provided a sufficient explanation for the extent of the variance. See United S tates v. Smith , 440 F.3d 704, 707-08 (5th Cir. 2006). In stating its reasons for a n on-Guidelines sentence, the court noted the n eed to afford adequate deterrence and to promote r e spect for the law, and considered Cruz’ history and characteristics. Cruz also contends the sentence was substantively u nr e a s o n ab l e given the above-noted, alleged procedural errors and b ecause the c o urt allegedly failed to give appro p r i a t e mitigating weight to h is alcohol addiction, his family-related reasons for repeatedly returning to the United States, and his need for alcohol rehabilitation. He further asserts the court exaggerated the seriousness of his theft a nd DWI c onvictions and the likelihood of recidivism b ased upon his three prior deportations.

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The sentence is substantively reasonable. The court tied the above-noted

reasons for it to specific facts a nd particular § 3553(a) factors s ufficient to justify the varia n c e . See G all , 552 U.S. at 49-53. Although s ignificant, it was not unreasonable. See U

n i t e d S t ates v. McElwee , 646 F .3d 328, 344-45 (5th Cir. 2011); s ee also United States v. Saldana , 427 F.3d 298, 315-16 (5th C i r . 2 0 0 5 ) (af f i rming upward departure six times m aximum a dvisory Guidelines range where court stated valid reasons for doing so). AFFIRMED.

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