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

Appeals 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 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

December 10, 2013

Lyle W. Cayce

Clerk

 

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No. 12-51252

c/w No. 12-51260

Mario Cortez-Velez pleaded guilty to being found in the United States 

following a previous deportation and was sentenced to a within-guidelines 

sentence of 25 months of imprisonment. The district court also revoked CortezVelez’s term of supervised release on a prior conviction and imposed a withinguidelines 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 procedurally 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 relevant 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-Velez 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 makes 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 court 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 outcome in the district court.” See MondragonSantiago, 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 

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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 sentences. 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 rejected 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 that his 

challenge to the presumption of reasonableness is foreclosed. See MondragonSantiago, 564 F.3d at 366-67. The record reflects that the district court 

considered Cortez-Velez’s arguments for a below guidelines sentence, but 

determined that a 25-month 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. Miller, 634 

F.3d 841, 843 (5th Cir. 2011). Accordingly, the judgment of the district court 

is AFFIRMED. 

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