IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50271

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

HUMBERTO ALONSO ONTIVEROS-PERALES,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CR-1618-1

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.

PER CURIAM:*

Humberto Alonso Ontiveros-Perales appeals his 18-month bottom-ofthe-Guidelines-range sentence, imposed following his guilty plea conviction for 

being an alien possessing and exporting ammunition in interstate commerce, 

in violation of 18 U.S.C. § 922(g)(5)(B) and 18 U.S.C. § 924(a)(2). Raising an 

unpreserved challenge to the substantive reasonableness of his sentence, 

Ontiveros contends the sentence is greater than necessary to meet the goals of 

 

* 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

October 19, 2016

Lyle W. Cayce

Clerk

 Case: 16-50271 Document: 00513725129 Page: 1 Date Filed: 10/19/2016
No. 16-50271

2

sentencing in the light of the mitigating circumstances involved and his 

exemplary personal and professional history.

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 Guideline-sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 48–51 (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). 

Ontiveros sought a below-Guidelines sentence in the district court prior 

to sentencing. Once the within-Guidelines sentence was imposed, however, and 

as Ontiveros concedes, he did not object to its substantive reasonableness. 

Therefore, review is only for plain error. E.g., United States v. Broussard, 669 

F.3d 537, 546 (5th Cir. 2012). (Ontiveros maintains no objection was required, 

including because he requested a sentence below the Guideline range. Because 

our precedent requires such an objection, he presents this point to preserve it 

for possible further review.) 

Under plain-error review, Ontiveros must show a forfeited plain (clear 

or obvious) error affected his substantial rights. Puckett v. United States, 556 

U.S. 129, 135 (2009). If he does so, we have the discretion to correct the

reversible plain error, but should do so only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Id.

Prior to sentencing, Ontiveros contended his life history, personal 

characteristics, and especially the circumstances of the offense warranted a 

lesser sentence. He explained he worked as a police investigator in Mexico for 

eight years and advised the court he acquired the ammunition at issue for 

 Case: 16-50271 Document: 00513725129 Page: 2 Date Filed: 10/19/2016
No. 16-50271

3

other officers and himself for target practice. He asserted he acquired the 

ammunition at his own expense because his police department did not issue 

ammunition for target practice. During sentencing, the court expressed 

concern that some of the ammunition Ontiveros purchased was designed for 

assault rifles, and that assault rifles are not typical of target practice.

The record reflects the court was aware of the information in the 

presentence investigation report, considered the arguments and letters of 

recommendation presented on Ontiveros’ behalf, entertained his allocution, 

and made an individualized sentencing decision in light of the facts of the 

proceeding. See Gall, 552 U.S. at 49–50. Ontiveros’ Guidelines sentence is 

entitled to a presumption of reasonableness. His assertions the sentence failed 

to reflect his personal history and characteristics or the mitigating 

circumstances involved are insufficient rebuttal. See Rita v. United States, 551 

U.S. 338, 347 (2007); United States v. Lopez–Velasquez, 526 F.3d 804, 807 (5th 

Cir. 2008). Ontiveros has not shown the court plainly erred in imposing the 

sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

AFFIRMED.

 Case: 16-50271 Document: 00513725129 Page: 3 Date Filed: 10/19/2016