IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50448

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

LEONEL PERSONA-DEVORA, also known as Martin Torres Torres, also 

known as Valentin Arujo Lopez, also known as Roberto Vargas Garcia,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:12-CR-2852-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Leonel Persona-Devora appeals the sentence of 21-months’

imprisonment imposed after his guilty-plea conviction for illegal reentry 

following deportation, in violation of 8 U.S.C. § 1326 (reentry of removed 

aliens). He contends his within-Guidelines sentence is substantively 

unreasonable because it is greater than necessary to satisfy the sentencing 

* 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

April 21, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50448 Document: 00512602988 Page: 1 Date Filed: 04/21/2014
No. 13-50448

goals of 18 U.S.C. § 3553(a). Along that line, he contends: the sentence is too 

severe because his offense was, at most, an international trespass; his reason

for reentry, his daughter’s request that he return to help care for his other 

children, mitigates his offense and outweighs his criminal history; and, there 

are additional mitigating facts—he has lived in the United States for much of 

his adult life and he suffers from alcoholism and gout.

Although post-Booker, the Sentencing Guidelines are advisory only, and 

a properly preserved objection to an ultimate sentence is reviewed for 

reasonableness under an abuse-of-discretion standard, the district court must 

still properly calculate the Guidelines-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. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Persona does not 

claim procedural error. As noted, he claims only that his sentence is 

substantively unreasonable. 

“A discretionary sentence imposed within a properly calculated 

guidelines range is presumptively reasonable.” United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir. 2008) (citations omitted). Although 

Persona contends a sentence imposed under the illegal-reentry Guideline

should not be accorded that presumption because it is not empirically based, 

he concedes this contention is foreclosed by this court’s precedent; he raises it 

only to preserve the issue for possible further review. See United States v. 

Duarte, 569 F.3d 528, 529–30 (5th Cir. 2009).

The record reflects the district court had an adequate basis for the 

sentence imposed. It considered the presentence investigation report, 

Persona’s allocution, his extensive criminal history, and the purposes of 

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No. 13-50448

sentencing as expressed in § 3553(a). The court acknowledged Persona’s 

reasons for return, but explained it could not overlook Persona’s lengthy 

criminal history. Further, the court noted it relied on Persona’s personal 

history and characteristics, as well as the nature and circumstances of his 

offense, in setting the sentence. We do not require a “robotic” recitation of each 

factor under §3553(a). United States v. Smith, 440 F.3d 704, 707 (5th Cir. 

2006).

This court has rejected repeatedly the contention that the Guidelines 

overstate the seriousness of illegal reentry because, according to Persona, it is 

simply an international trespass offense. E.g., United States v. Juarez-Duarte, 

513 F.3d 204, 212 (5th Cir. 2008). Persona has not shown the court failed to 

consider a significant factor, gave significant weight to an irrelevant factor, or 

made a clear error of judgment in balancing the § 3553(a) factors. See, e.g.,

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Rather, he disagrees 

with its weighing of those factors and asks this court to reevaluate the decision. 

Given the deference due to a district court’s assessment of the § 3553(a) factors 

and its sentencing decision, Persona has not shown his sentence is 

substantively unreasonable.

AFFIRMED.

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