IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50563

c/w No. 13-50565

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OCTAVIO MANZANARES-PUENTE, also known as Octavio Manzanares, also 

known as Octavio Manzanales, also known as Octavio Manzanales-Puente,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:13-CR-162-1

Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

Octavio Manzanares-Puente appeals the 18-month within-guidelines 

sentence imposed for his illegal reentry conviction and the consecutive 14-

month within-guidelines sentence imposed following the revocation of his 

supervised release for a prior illegal reentry conviction. He contends that his 

* 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

June 10, 2014

Lyle W. Cayce

Clerk

 

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sentences are substantively unreasonable because they were greater than 

necessary to accomplish the sentencing goals under 18 U.S.C. § 3553(a).

We review Manzanares-Puente’s arguments under the plain error 

standard because he did not object in the district court to the substantive 

reasonableness of his sentences. See United States v. Heard, 709 F.3d 413, 425 

(5th Cir.), cert. denied, 134 S. Ct. 470 (2013); United States v. Whitelaw, 580 

F.3d 256, 259-60 (5th Cir. 2009). He concedes that plain error review applies 

but wishes to preserve for further review the issue “whether a failure to object 

to the reasonableness of a sentence upon its imposition requires plain error 

review.”

Because the sentences were within the correctly calculated guidelines 

ranges, the sentences are presumptively reasonable. See United States v. Diaz 

Sanchez, 714 F.3d 289, 295 (5th Cir. 2013); United States v. Lopez-Velasquez, 

526 F.3d 804, 809 (5th Cir. 2008). The district court’s decision to order the

sentences to be served consecutively was consistent with the advice under the 

Guidelines and is also entitled to a presumption of reasonableness. See

U.S.S.G. § 5G1.3, comment. (n.3(C)); U.S.S.G. § 7B1.3(f), p.s.; United States v. 

Candia, 454 F.3d 468, 473 (5th Cir. 2006). The presumption of reasonableness 

“is rebutted only upon a showing that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th 

Cir. 2009).

Manzanares-Puente also wishes to preserve for further review the 

argument that the presumption of reasonableness should not apply to withinguidelines sentences calculated under U.S.S.G. § 2L1.2 because § 2L1.2 lacks 

an empirical basis. As conceded by him, such an argument is foreclosed by our

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precedent. See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th Cir. 

2011).

According to Manzanares-Puente, the combined 32 months of 

imprisonment imposed by the district court was greater than necessary under 

§ 3553(a) because guidelines calculations under § 2L1.2 lack an empirical basis

and give heavy weight to a defendant’s criminal history through 

enhancements, such as his four-level enhancement under § 2L1.2(b)(1)(D), that 

are based on prior convictions. He asserts that § 2L1.2 effectively double 

counted his criminal history, as one of his prior felony convictions was, in part, 

responsible for both his § 2L1.2(b)(1)(D) enhancement and his placement in 

criminal history category IV. Manzanares-Puente additionally argues that his 

sentences overstated the seriousness of his instant illegal reentry offense and 

failed to reflect his personal history and characteristics.

The district court listened to Manzanares-Puente’s arguments for a 

lesser sentence but determined that consecutive imprisonment terms of 18 and 

14 months were appropriate. “[T]he sentencing judge is in a superior position 

to find facts and judge their import under § 3553(a) with respect to a particular 

defendant.” United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 

2008). Manzanares-Puente has not shown sufficient reason to disturb the 

presumption of reasonableness applicable to his sentences. See United States 

v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. GomezHerrera, 523 F.3d 554, 565-66 (5th Cir. 2008). He has not shown that his 

sentences are substantively unreasonable.

AFFIRMED.

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