     Case: 11-40910     Document: 00511855657         Page: 1     Date Filed: 05/15/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 15, 2012
                                     No. 11-40910
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LAZARO JIMENEZ-ESPINOZA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-836-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Following resentencing ordered by this court, Lazaro Jimenez-Espinoza
challenges the new sentence of 50-months’ imprisonment imposed after his
guilty-plea conviction of illegal reentry after removal. He contends the within-
Guidelines sentence is both procedurally and substantively unreasonable.
        The sentence now contested by Jimenez was imposed on remand, after our
court vacated his first sentence on grounds the district court, in imposing that
first sentence, had committed procedural error by relying on a clearly erroneous

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40910

fact: namely, that Jimenez had profited from transporting illegal aliens. United
States v. Jimenez-Espinoza, 408 F. App’x 823 (5th Cir. 2011).
      For the appeal at hand, we first examine whether the district court
committed any procedural errors, “such as . . . failing to adequately explain the
chosen sentence”. Gall v. United States, 552 U.S. 38, 51 (2007). If procedurally
sound, we will then “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard . . . tak[ing] into account the
totality of the circumstances”. Id.
      Jimenez maintains his sentence is procedurally unreasonable because, at
resentencing in August 2011, the district court failed to adequately explain the
sentence. Specifically, he contends the district court failed to explain: why it
rejected his request for a sentence below the advisory Guidelines range based on
a proposed amendment to Guideline § 2L1.2(b)(1)(A) (amendment became
effective approximately three months later (on 1 November 2011), reducing
16-level enhancement, which Jimenez received,             to 12 levels when prior
conviction too old to qualify for criminal history points); and why correction of
the clearly erroneous fact, which resulted in his first sentence being vacated, did
not warrant a different sentence (vacated sentence was same as the sentence at
hand, i.e., 50-months’ imprisonment). The parties disagree on whether Jimenez’
contention was adequately preserved in district court. Although Jimenez
generally objected to the reasonableness of his sentence, he did not object
specifically to the adequacy of the district court’s reasons. Our court need not
determine the appropriate standard of review, however, because Jimenez is not
entitled to relief under either standard. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
      At resentencing, the district court listened to the contentions for a
sentence both below and within the advisory Guidelines range before imposing
the sentence. The court stated it had sentenced Jimenez pursuant to the 18
U.S.C. § 3553(a) factors and noted that the sentence reflected Jimenez’ criminal

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                                  No. 11-40910

history, the need to deter future criminal conduct, and the need to protect the
public. And, as Jimenez concedes, correction of the clearly erroneous fact from
the first sentencing, which resulted in his first sentence being vacated, did not
prevent the district court from reimposing the same sentence on remand.
      Regarding the substantive reasonableness of his sentence, Jimenez first
asserts, solely for purposes of preserving the issue for possible further review,
that the presumption of reasonableness afforded within-Guidelines sentences
should not apply to sentences calculated under Guideline § 2L1.2 because it is
flawed. In other words, he concedes that this contention is foreclosed by circuit
precedent. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th
Cir. 2009). Also unavailing is Jimenez’ assertion that the presumption of
reasonableness should not apply to his sentence because the then-pending
amendment to Guideline § 2L1.2(b)(1)(A) drastically revises the advisory
Guidelines sentencing range applicable to him.
      Otherwise, Jimenez contends his sentence was substantively unreasonable
because the proposed (and now effective) amendment to § 2L1.2(b)(1)(A) suggests
the offense underlying his § 2L1.2(b)(1)(A) enhancement is stale. In addition,
Jimenez asserts the district court ignored the effect of the proposed amendment
when sentencing him and, as a result, the sentence does not account for a factor
that should have received significant weight. Jimenez’ having preserved a
substantive reasonableness challenge by objecting on that basis, review is for
abuse of discretion. E.g., United States v. Peltier, 505 F.3d 389, 391 (5th Cir.
2007).
      “A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). In order to rebut the presumption, defendant
must show “that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper factor,



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or it represents a clear error of judgment in balancing sentencing factors”.
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Jimenez cites no legal precedent supporting his assertion that the district
court’s disregarding the effect of the then-pending amendment rendered his
sentence substantively unreasonable. Further, this court has recognized that
“the staleness of a prior conviction used in the proper calculation of a guidelines-
range sentence does not render a sentence substantively unreasonable”. United
States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011).           The subsequent
amendment of § 2L1.2(b)(1)(A) does not undermine that reasoning.
      AFFIRMED.




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