### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 50171 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JOSE JESUS OLVERA ROMERO , Defendant

- Appellant
Cons. w/ No. 15

- 5 0211 UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JESUS OLVERA

- ROMERO, also known as J. Jesus Olvera

- Romero , Defendant

- Appellant

Appeal s from the United States District Court for the Western District of Texas USDC No. 2:14

- CR

- 715

- 1 USDC No. 2:14

- CR

- 78

- 1 United States Court of Appeals Fifth Circuit 

### FILED November 5 , 2015 Lyle W. Cayce Clerk Case: 15-50171 Document: 00513260362 Page: 1 Date Filed: 11/05/201515

- 50171

2 Before SMITH, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * Jose Jesus Olvera Romero (Olvera) appeals the sentences imposed following his guilty plea conviction for illegal reentry after prior removal and the revocation of a previous term of supervised release. He maintains that the combined 48

- month sentence was greater than necessary to satisfy the sentencing goals set forth in 18 U. S.C. § 3553(a) because U.S.S.G. § 2L1.2, the guideline that applies to illegal

- reentry offenses , is not empirically based and results in prior convictions , including those that are too remote to be included in the criminal history calculation, being unduly weighed

. Olvera argues that sentences under § 2L1.2 are not entitled to a presumption of reasonableness because the guideline is not empirically based; as he concedes, that argument is foreclosed. See United States v. Mondragon

- Santiago , 56 4 F.3d 357, 366

- 67 (5th Cir. 2009). He further argues that his sentence , which was greater than necessary to provide adequate deterrence and to protect the public, overstate d the seriousness of his illegal

- reentry offense, undermined respect for the law, and failed to provide just punishment. Olvera did not object to his sentences after their imposition and, thus , plain error review typically applies

. See United States v. Peltier , 505 F.3d 389, 391

- 92 (5th Cir. 2007). However, because Olvera’s substan tive reasonableness claims fail even under the ordinary standard , the standard of review is not dispositive . See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). To the extent that Olvera contends that no objection is needed to preserve the

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. Case: 15-50171 Document: 00513260362 Page: 2 Date Filed: 11/05/201515

- 50171

3 issue of the substantive reasonableness of a sentence, that argument, as he concedes , is foreclosed. See Peltier , 505 F.3d at 391

- 92. The 42

- month sentence imposed for Olvera’s illegal

- reentry offense was within the guideline s range and , therefore , is entitled to the presumption of reasonableness. See United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). The record reflects that the district court’s sentencing decision was based up on an individualized assessment of the facts in light of the § 3553(a) factors. See Gall v. United States , 552 U.S. 38, 51 (2007). The district court’s decision is entitled to deference, and we may not reweigh the § 3553(a) factors. Id . at 51

- 52. Olvera’s claim that his sentence is unreasonable because § 2L1.2 l acks an empirical basis and inordinately weighs prior convictions, including those too remote to receive criminal history points, is unavailing

. See United States v. Rodriguez , 660 F.3d 231, 234 (5th Cir. 2011) ; United States v. Duarte , 569 F. 3d 528, 529

- 31 (5th Cir. 2009). We have rejected challenges that are based upon the alleged triviality of illegal

- reentry offenses

. See United States v. Aguirre

Villa , 460 F.3d 681, 683 (5th Cir. 2006)

. Thus, Olvera has not rebutted the presumption of reasonableness. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). To the extent that Olvera separately challenges the reasonableness of his revocation sentence, he has not sho wn that the within

- guidelines six

- month sent en ce was plainly unreasonable. See United States v. Miller , 634 F.3d 841, 843 (5th Cir. 2011)

. The district court had the discretion to order the sentences to be served consecutively. See United States v. Whitelaw , 580 F.3d 256, 260

- 61 (5th Cir. 2009); se e also 18 U.S.C. § 3584(a); U.S.S.G. § 7B1.3(f) & comment. (n.4), p.s. Because the sentence fell within the advisory policy range and was consistent with the Guidelines’ policy with regard to consecutive sentences, it is entitled to a p resumption of reaso nableness. See U.S.S.G. § 7B1.1(a)(2); Case: 15-50171 Document: 00513260362 Page: 3 Date Filed: 11/05/201515

- 50171

4 § 7B1.4; United States v. Candia , 454 F.3d 468, 472

- 73 (5th Cir. 2006). Olvera has failed to show that the district court abused its discretion by imposing the consecutive sentence and has not rebutted t he presumpti on of reasonableness. See United States v. Lopez

- Velasquez , 526 F.3d 804, 809 (5th Cir. 2008)

. AFFIRMED. Case: 15-50171 Document: 00513260362 Page: 4 Date Filed: 11/05/2015