### 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

- of

the

- G uidelines

- range sentence , imposed following his guilty plea conviction for being an alien possessin g and exporting ammunition in interstate commerce , in violati o n of 18 U.S.C. § 922(g)(5 )(B) and 18 U.S.C. § 924(a)(2)

. Raising an unpreserved c halleng e to the substantive reasonableness of his sentence, Ontiveros contend s 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* Pursuant to 5th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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. C ayce Clerk Case: 16-50271 Document: 00513725129 Page: 1 Date Filed: 10/19/2016No. 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 standar d, 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 o f the Guidelines is reviewed de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 51 7 F.3d 751, 764 (5th Cir. 2008)

. Ontiveros sought a below

- G uidelines 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. 201 2). (Ontiver os 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) e rror affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If h e 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 f or Case: 16-50271 Document: 00513725129 Page: 2 Date Filed: 10/19/2016No. 16

- 50271

3 other officers and himself for target practice

. He asserted he acquired the ammunition at his own expense because his police department d id not issue ammunition for target practice . During sentencing, t he court expressed

concern that some of the ammun ition 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 l ight of the facts of the proceeding

. See Gall , 552 U.S. at 49

– 50 . Ontiveros’ G uidelines 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