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

No. 12

- 51252 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. MARIO CORTEZ

- VELEZ , Defendant

- Appellant
Cons

. w / No. 12

- 51260 UNITED STATES OF AMERICA,
Plaintiff

- Appellee v. MARIO CORTES

- VELEZ, also known as Mario Cortez

- Belez,
Defendant

- Appellant

Appeal s from the United States District Court for the Western District of Texas USDC No. 2:12

- CR

- 446

- 1 USDC No. 2:09

- CR

- 153

- 1

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges. PER CURIAM: *

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited ci rcumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 10, 2013 Lyle W. Cayce Clerk Case: 12-51252 Document: 00512466774 Page: 1 Date Filed: 12/10/2013No. 12

- 51252 c/w No. 12

- 51260 Mario Cortez

- Velez pleaded guilty to being found in the United S t ates following a previous deportation and was sentence d to a within

- guidelines sentence of 25 months of imprisonment. The district court also revoked Cortez

Velez’s term of super vised release on a prior conviction and imposed a within

guidelines sentence of 22 months, to run consecutively to the illegal reentry sentence. His appeals from those judgments were consolidated. Cortez

- Velez contends that the district court procedura lly erred in considering his request for a variance based on family circumstances solely under the Guidelines , specifically U.S.S.G. § 5H1.6. By doing so, Cortez

- Velez asserts , the district court “treated the guideline as mandatory or failed to consider r elevant factors under 18 U.S.C. § 3553(a).” Because Cortez

- Velez did not raise this argument before the district court, as he acknowledges, review is for plain error. See United States v. Mondragon

- Santiago , 564 F.3d 357, 361 (5th Cir. 2009). Cortez

- Vel ez thus must show an error that is clear or obvious and that affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). If he m akes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. A fair reading of the sentencing transcript indicates that the district court not only considered the Guidelines, but also Cortez

- Velez’s criminal history and the need to deter future criminal conduct by Cortez

- Velez when determining that a within

- guidelines sentence was appropriate. See § 3553(a). Thus, Cortez

- Velez fails to show that the district cour t procedurally erred. See Gall v. United States , 552 U.S. 38, 51 (2007); Puckett , 556 U.S. at 135. Even assuming , arguendo , that the district court did err, Cortez

- Velez cannot show that the error “affected the outco me in the district court.” See Mondra gon
Santiago , 564 F.3d at 364

. He does not argue that if the case was remanded for resentencing, the district court could not impose the same consecutive

2 Case: 12-51252 Document: 00512466774 Page: 2 Date Filed: 12/10/2013No. 12

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- 51260 sentences. See United States v. Ravitch , 128 F.3d 865, 869 (5th Cir. 1997). Additionally, he points to nothing in the record to support his conclusional assertion that there is a reasonable probability that, but for the district court’s error, he would have received lower sentence s . See United States v. Davis , 602 F.3d 643, 647 (2010). Accordingly, he is not entitled to relief under plain error review. See Puckett , 556 U.S. at 135. Cortez

- Velez also contends that the sentences imposed on his illegal reentry offense and revocation are substantively unreasonable because they are greater than necessary to satisfy the sentencing goals of § 3553(a)

. We review Cortez

- Velez’s arguments challenging the substantive reasonableness of his sentence under a deferential abuse of discretion standard. See Gall , 552 U.S. at 51. We have consistently reject ed Cortez

- Velez’s “double counting argument” and his argument that U.S.S.G. § 2L1.2 results in an excessive sentence because it is not empirically based. See United States v. Duarte , 569 F.3d 528, 530 (5th Cir. 2009). Further, Cortez

- Velez acknowledges t hat his challenge to the presumption of reasonableness is foreclosed. See Mondragon

Santiago , 564 F.3d a t 366

- 67. The record reflects that the district court considered Cortez

- Velez’s arguments for a below guidelines sentence, but determined that a 25

- mo nth sentence was “necessary in order to deter future criminal conduct.” Cortez

- Velez has failed to rebut the presumption of reasonableness that is accorded his within

- guidelines sentence. See United States v. Gomez

- Herrera , 523 F.3d 554, 565

- 66 (5th Cir. 2008); United States v. Rodriguez , 523 F.3d 519, 526 (5th Cir. 2008). Similarly, he has failed to show that the 22

- month consecutive sentence imposed following the revocation of his supervised release was plainly unreasonable. See United States v. Mille r , 634 F.3d 841, 843 (5th Cir. 2011). Accordingly, the judgment of the district cou rt is AFFIRMED.

3 Case: 12-51252 Document: 00512466774 Page: 3 Date Filed: 12/10/2013