Opinion
No. 09-40136 Summary Calendar.
September 14, 2009.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Molly E. Odom, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:08-CR-870-ALL.
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
Celso Viramontes-Galavis appeals the 77-month sentence imposed following his conviction on a guilty plea to illegal reentry after having been convicted of an aggravated felony. See 8 U.S.C. § 1326(a), (b). For the first time on appeal, Viramontes contends his sentence, which is at the bottom of the applicable advisory guidelines sentencing range, is procedurally unreasonable under Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007), and Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), because the district court did not give reasons for rejecting his request for a below-guidelines sentence, address his nonfrivolous arguments for a lower sentence, or explain its reasons for the sentence it imposed. Viramontes further contends his sentence is substantively unreasonable because it is much longer than any term he has previously served and because a lesser sentence would fulfill the sentencing goals of 18 U.S.C. § 3553(a).
Because these contentions were not presented in district court, our review is only for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361-65 (5th Cir. 2009), petition for cert. filed (24 June 2009) (No. 08-11099). Reversible plain error exists where a clear or obvious error affects the defendant's substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009); see also Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Even then, we have discretion whether to correct such an error and generally will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d at 332.
Viramontes contends: neither plain error review nor the presumption of reasonableness should apply because Guideline § 2L1.2 (providing offense levels for unlawfully entering or remaining in the United States) is not empirically based; he does, however, acknowledge that these issues are foreclosed, and raises them merely to preserve them for further review. Viramontes' claim of procedural error fails because the record shows the district court based his sentence on the factual findings and guidelines calculation in the presentence investigation report. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Further, Viramontes has not shown his sentence would have been different had the district court provided a more thorough explanation for its choice of sentence. See Mondragon-Santiago, 564 F.3d at 364-65.
As to the substantive reasonableness of Viramontes' sentence: "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) (citing United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006)); see also Rita, 551 U.S. at 352-56, 127 S.Ct. 2456 (holding that an appellate court may presume a within-guidelines sentence to be reasonable). Viramontes has not rebutted this presumption. See Mondragon-Santiago, 564 F.3d at 365-67.
AFFIRMED.