IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51122

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

HERLY LEONEL URBINA-ABREGO,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-359-1

Before BARKSDALE, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

HerlyLeonel Urbina-Abrego pleaded guilty to being illegally presentin the

United States following deportation and received, pursuant to that plea, an

above-Guidelines sentence of 30 months’ imprisonment. (His advisory

sentencing range was 15 to 21 months.) Contesting the reasonableness of that

sentence, Urbina contends the district court erred: procedurally, by improperly

considering evidence of his previous arrests (domestic violence or assault and

battery on a family member) and by double-counting his convictions; and,

United States Court of Appeals

Fifth Circuit

F I L E D

July 3, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-51122

substantively, by ruling his prior arrests and convictions were aggravated for

sentencing purposes.

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 standard, 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, 51 (2007). In that respect,

for issues preserved in district court, its application of the Guidelines is reviewed

de novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d

355, 359 (5th Cir. 2005). 

Although Urbina expressly challenges the substantive reasonableness of

his sentence, he arguably implicitly claims procedural error by asserting the

district court improperly considered information concerning his arrests, as set

forth in the Presentence Investigation Report (PSR), to determine his sentence. 

Because Urbina failed to raise this issue in district court, however, its review is

only for plain error. E.g., United States v. Jones, 484 F.3d 783, 792 (5th Cir.

2007). For reversible plain error, Urbina must show, inter alia, a forfeited error

that is clear or obvious and that affects his substantial rights. See Puckett v.

United States, 556 U.S. 129, 135 (2009). 

In addition to listing the alleged offenses for which Urbina was arrested,

the PSR also included factual information underlying those arrests. Urbina

neither objected to the PSR nor offered rebuttal evidence. E.g., United States v.

Harris, 702 F.3d 226, 231 (5th Cir. 2012), cert. denied, 133 S. Ct. 1845 (2013) (no

plain error where district court considered unrebutted factual information in

PSR to determine sentence). Accordingly, Urbina fails to show clear or obvious

error. 

Urbina also arguably claims procedural error by asserting the district

court improperly double-counted his prior convictions by using them to increase

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No. 12-51122

his criminal history score and to justify an upward variance. “[D]ouble-counting

is prohibited only if it is specifically forbidden by the particular guideline at

issue”. United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Again, Urbina

fails to show clear or obvious error. See United States v. Duarte, 569 F.3d 528,

529-31 (5th Cir. 2009).

Regarding his challenge to the substantive reasonableness of his sentence,

which he arguably preserved in district court, Urbina contends his arrests and

convictions were not of an aggravated nature for sentencing purposes. He

asserts that lengthening his term of imprisonment will not protect the public

because he no longer has contact with his wife, and will be deported upon his

release from prison. “A non-Guideline sentence unreasonably fails to reflect the

statutory sentencing factors where it (1) does not account for a factor that should

have received significant weight, (2) gives significant weight to an irrelevant or

improper factor, or (3) represents a clear error of judgment in balancing the

sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

Urbina’s disagreeing with the propriety of the sentence is insufficient to

show error. “[T]he sentencing judge is in a superior position to find facts and

judge their import under [18 U.S.C.] § 3553(a) with respect to a particular

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

2008). 

AFFIRMED. 

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