IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51140

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN FRANCISCO ELIZONDO-RAMOS, also known as Juan Elizondo,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:16-CR-385-1

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Juan Francisco Elizondo-Ramos appeals the sentence for his illegal 

reentry offense that was at the low end of the applicable guideline range. He 

argues that his sentence was substantively unreasonable and greater than 

necessary to meet the goals of 18 U.S.C. § 3553(a). Elizondo-Ramos concedes 

that review is for plain error under United States v. Peltier, 505 F.3d 389, 391-

92 (5th Cir. 2007), but challenges the appropriate standard of review to 

 

* 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

June 13, 2017

Lyle W. Cayce

Clerk

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No. 16-51140

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preserve the issue for possible review by the Supreme Court. To succeed under 

the plain error standard, Elizondo-Ramos must show an error that is clear or 

obvious and that affects his substantial rights, but even so, this court will 

exercise its discretion to correct any error only if it “seriously affect[s] the 

fairness, integrity, or public reputation of judicial proceedings.” Puckett v. 

United States, 556 U.S. 129, 135 (2009) (internal quotation marks and citation 

omitted).

Following United States v. Booker, 543 U.S. 220 (2005), sentences are 

reviewed for reasonableness in light of the sentencing factors in § 3553(a). 

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). “A discretionary 

sentence imposed within a properly calculated guidelines range is 

presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 

337, 338 (5th Cir. 2008) (internal quotation marks and citation omitted); see 

Rita v. United States, 551 U.S. 338, 347 (2007). Elizondo-Ramos believes that 

the presumption should not be afforded to a sentence under U.S.S.G. § 2L1.2 

because the guideline lacks an empirical basis. However, he recognizes that 

his argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 

357 (5th Cir. 2009), and he raises it solely to preserve its further review.

Addressing the substantive reasonableness of the sentence, ElizondoRamos argues that the district court ignored the mitigating aspects of the 

offense, specifically that he readily admitted his guilt when apprehended and, 

having already been assaulted by gang members, returned to the United States 

to save his life. The record reveals that the district court did not ignore 

Elizondo-Ramos’s arguments in mitigation. Rather, it rejected them given the 

lengthy nature of his criminal history.

Insofar as Elizondo-Ramos takes issue with the “double counting” of his 

Texas robbery conviction, for which he received a 16-level enhancement under 

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§ 2L1.2(b)(1)(A)(ii), the guideline required such counting and thus did not 

render his sentence greater than necessary to meet the § 3553(a) goals. See 

United States v. Hernandez-Funez, 307 F. App’x 799, 801 (5th Cir. 2009). 

Finally, Elizondo-Ramos complains that the district court refused to sentence 

him under, at the date of sentencing, soon-to-be amended § 2L1.2. See U.S.

SENTENCING GUIDELINES MANUAL app. C, amend. 802 (U.S. SENTENCING 

COMM’N 2016). However, he has shown no plain error in that regard inasmuch 

as the district court was not required to consider the amendment. See United 

States v. Solis, 675 F.3d 795, 797 (5th Cir. 2012).

AFFIRMED.

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