IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50274

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE EDUARDO QUEZADA-HUERTA,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:15-CR-1631-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

For his guilty-plea conviction for illegal reentry in violation of 8 U.S.C. 

§ 1326, Jose Eduardo Quezada-Huerta challenges the substantive 

reasonableness of his within-Guidelines sentence. He does not claim 

procedural error in calculating his Guidelines sentencing range. 

Quezada’s total offense level of 17, coupled with his criminal-history 

category of I, resulted in a sentencing range of 24–30 months’ imprisonment. 

 

* 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

January 31, 2017

Lyle W. Cayce

Clerk

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No. 16-50274

2

At sentencing, Quezada asked the court to sentence him below that range 

because he had a minimal criminal history, and because he reentered the 

United States illegally out of fear that individuals who kidnapped him in 2010 

sought to harm him again. The court sentenced Quezada at the bottom of the 

sentencing range, to 24-months’ imprisonment. He objected “to the sentence 

under the [18 U.S.C. § 3553(a) sentencing] factors as exceeding what is 

necessary under those factors”.

A properly-preserved objection to an ultimate sentence is reviewed for 

substantive reasonableness under an abuse-of-discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). 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. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th 

Cir. 2008). To the extent Quezada failed to preserve in district court his 

contentions on appeal, review is only for plain error. See United States v. 

Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).

Quezada first contends his sentence is substantively unreasonable 

because Guideline § 2L1.2 lacks an empirical basis, thus its application 

resulted in an unduly inflated sentencing range. Our court has repeatedly 

rejected similar challenges. E.g., United States v. Duarte, 569 F.3d 528, 530–

31 (5th Cir. 2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366–

67. (Quezada concedes a challenge to Guideline § 2L1.2’s lacking an empirical 

basis is foreclosed in this circuit and raises this issue to preserve it for possible 

further review.) 

Next, Quezada asserts his sentence overstates the seriousness of his 

offense and fails to provide just punishment because the Sentencing 

Commission recently revised § 2L1.2; and, under that revised Guideline, his 

resulting sentencing range would be substantially lower. Quezada has not 

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No. 16-50274

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shown the court erred by applying the version of the Guidelines in effect at the 

time of sentencing. See United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 

1999); U.S.S.G. § 1B1.11(a). 

Finally, Quezada contends the sentence imposed did not adequately 

account for his personal history and characteristics, to wit: that he illegally 

reentered to flee from individuals who had previously kidnapped him. Where, 

as here, the district court imposes a sentence within a correctly calculated 

Guidelines sentencing range, a rebuttable presumption of reasonableness

applies. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

The court sentenced Quezada within the Guidelines range after listening 

to his mitigating arguments regarding the dangers he allegedly faced in 

Mexico. The “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). 

Quezada fails to rebut the above-described presumption of 

reasonableness. In short, there was no error, plain or otherwise.

AFFIRMED.

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