### 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 viol ation of 8 U.S.C. § 1326 (reentry of removed aliens) . He contends his within

- G uidelines sentence is substantively unreasonable because it is greater than necessary to satisfy the sentencing

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4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: 04/21/2014No. 13

- 50448 goals of 18 U.S.C. § 3553(a). Along that line, he contends: the sentence is too

sev ere 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 reviewe d 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 do es 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. Campos

Maldonado , 531 F.3d 337, 338 (5th Cir. 2008 ) (citations omitted)

. Although Persona contends a sentence imposed under the illegal

- reentry G uideline should not be accorded that presumption because it is not empirically based , h e concedes t his contention is foreclosed by this court’s precedent ; he ra ises it only to preserve the i ssue 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

2 Case: 13-50448 Document: 00512602988 Page: 2 Date Filed: 04/21/2014No. 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 histo ry. Further, th e 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 Sta tes 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. , Unite d 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 b alancing 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 distr ict court’s assessment of the § 3553(a) factor s and its sentencing decision, Persona has not shown his sentence is substantively unreasonable. AFFIRMED.

3 Case: 13-50448 Document: 00512602988 Page: 3 Date Filed: 04/21/2014