IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40893

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

BLAS CRUZ URBINA, 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 Urbina (Cruz) appeals the 60-month sentence imposed following

his guilty-plea conviction for attempted illegal reentry after deportation, in

violation of 8 U.S.C. § 1326. He contends his 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 properly

preserved objection to an ultimate sentence is reviewed for reasonableness under

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2013

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. 12-40893

an abuse-of-discretion standard, the district court must still properly calculate

the Guideline-sentencing range for use in deciding on the sentence to impose.

Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues

preserved in district court, its application of the Guidelines is reviewed de novo;

its factual findings, only for clear error. See, e.g., United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); 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, and 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, but should do so only if it seriously affects the fairness,

integrity, or public reputation of the proceedings. See id.

In plain-error review, “questions of fact capable of resolution by the district

court can never constitute plain error”. See United States v. Chung, 261 F.3d

536, 539 (5th Cir. 2001) (citation and internal quotation marks omitted). 

Accordingly, Cruz’ challenges to the factual findings and inferences by the court,

not objected to at sentencing, cannot constitute plain error. See id.

Even assuming arguendo the court’s findings and inferences merit

analysis, there was no reversible plain error. The court was within its wide

discretion in rejecting Cruz’ assertions he was supportive of his wife and family,

see United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir.), cert. denied,

133 S. Ct. 247 (2012), and its inference Cruz’ family may not want to have

contact with him was plausible in the light of the record as a whole. See United

States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Finally, given the court’s

stated concerns regarding the seriousness of Cruz’ prior unscored convictions,

the light sentences he received for his previous crimes, repeated reentry into the

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United States following prior deportations, and recent convictions for theft and

driving while intoxicated (DWI), there is nothing in the record to suggest, absent

the court’s erroneous determination his prior Texas DWI offense constituted a

crime of violence, see United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir.

2001) (holding Texas felony DWI is not a crime of violence), that he would have

received a lesser sentence. See Puckett, 556 U.S. at 135; cf. United States v.

Chandler, __ F.3d __, 2013 WL 5508139, at *4 (5th Cir. 4 Oct. 2013) (vacating

and remanding 127-month variance where “we [could not] confidently say that

the district court would have imposed the same sentence without reliance on [an

improper] factor”) (citations and internal quotation marks omitted). 

We need not consider the propriety of the sentence as an upward

departure, pursuant to Guideline § 4A1.3, because the sentence may be affirmed

on the court’s alternate basis as an upward variance justified by the 18 U.S.C.

§ 3553(a) sentencing factors. See United States v. Bonilla, 524 F.3d 647, 656-59

(5th Cir. 2008). On that point, Cruz maintains the court erred procedurally by

failing to adequately explain the extent of the variance. 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 States v. Smith, 440 F.3d 704, 707-08

(5th Cir. 2006). In stating its reasons for a non-Guidelines sentence, the court

noted the need to afford adequate deterrence and to promote respect for the law,

and considered Cruz’ history and characteristics.

Cruz also contends the sentence was substantively unreasonable given the

above-noted, alleged procedural errors and because the court allegedly failed to

give appropriate mitigating weight to his 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 and DWI convictions and the likelihood of recidivism based 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 and particular § 3553(a) factors sufficient to justify

the variance. See Gall, 552 U.S. at 49-53. Although significant, it was not

unreasonable. See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir.

2011); see also United States v. Saldana, 427 F.3d 298, 315-16 (5th Cir. 2005)

(affirming upward departure six times maximum advisory Guidelines range

where court stated valid reasons for doing so). 

AFFIRMED.

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