### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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: * H e rly L e o n e l Urb i n a -Abrego pleaded gu ilty to being illegally p r e s e nt i n th e United States following deport a t i on and r eceived, pursuant to that plea, an above-Guideli n e s sentence of 30 months’ imprisonment. (His advisory sentencing range was 15 to 21 months.) Contesting the reasonableness of that sentence, Urbina contends the district c o urt erred: procedurally, by improperly considering e vidence of h is previous arrests (domestic vi o l e n c e o r a ssault and battery on a family member) and by double-count i n g h is convictions; and, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 3, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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substantively, by ruling his p rior arrests and convictions were aggra v a t ed for sentencing purposes. Although post- Booker , the Sentencing Guidelines are advisory only, and

a properly preserved objection to an ultimate sentence is revie w ed for reasonablen e s s under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range f or use in deciding on the sentence to i mpose. Gall v. United S tates, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court , its application of the Guidelines is r eviewed de novo ; its factual findings, only for c lear error. E.g. , United States v . CisnerosGutierrez , 517 F.3d 7 51, 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 s entence, he arguably i m plicitly c laims p rocedural error b y asserting the district court improperly considered information c oncerning his arrests, as set forth i n 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
. , U n i t e d States v. Jones , 484 F.3d 783, 7 92 (5th Cir. 2007). For reversible plain error, Urbina must show, i nter alia , a forfeited error that i s clear or obvious and that affe c t s his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). In addition to listing the alleged offenses f or which Urbina w as arrested, the PSR also included f actual information underlying those a r r ests. Urbina neither objected to the P SR nor offered rebuttal evidence. E.g. , U nited States v. Harris , 702 F.3d 2 26, 2 31 (5th Cir. 2012), cert. denied , 133 S

. Ct. 1845 (2013) (no plain error where district court considered un r e b u t t ed factual information in PSR t o determine sentence). Accordingly, Urbina fails to show clear or obvious

error. Urbina also arguably claims proc e d ural error by asserting the district court improperly double-counted his prior convictions by using them to increase
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his c riminal history score and to j ustify a n u p ward variance. “ [D]ouble-counting is prohibited only if it is specifically forbidden by the pa r t i cular guideline at issue”. U

nited States v. Calbat , 266 F.3d 358, 3 64 (5th Cir. 2 001). Again, Urbina fails t o s how c lear or ob vious error. See United States v. Duarte , 5 6 9 F.3d 528, 529-31 (5th Cir. 2009). Regarding his challenge to the substantive reasonableness of hi s s e nt e nce, which he arguably preserved in district court, Urbina contends his arrests and convictions were not of an aggravated n a t u r e for sentencing purposes. He asserts that lengt h e n i n g his term of imprisonment will not protect the public because he no l onger has contact with his w ife, a nd will b e d eported 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 f actor that should have r eceived significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear e rror of judgment in balancing the sentencing factors.” United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006). U rbina’s disagreeing with the propriety of the sentence i s insufficient t o show error. “[T]he sen t e n c i n g j u d ge is i n a s u perior p o sition to find facts and judge their import under [18 U. S

. C .] § 3553(a) with r e spect to a particular d e f e n d a nt.” United States v. Campos-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008). AFFIRMED.

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