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

                                                FILED
                                                                December 21, 2009
                               No. 09-40247
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JORGE HERNANDEZ LOPEZ, also known as Julio Angulo, also known as Julio
Franco Mendoza,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:08-CR-866-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Jorge Hernandez Lopez (Hernandez-Lopez) appeals the 77-month sentence
imposed following his guilty plea conviction for being found unlawfully in the
United States following deportation in violation of 8 U.S.C. § 1326. He contends
that his within-guidelines sentence is procedurally unreasonable because the
district court failed adequately to explain the sentence and to address his
nonfrivolous arguments for a lower sentence. Because Hernandez-Lopez did not


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 09-40247

object to the adequacy of the district court’s explanation for the sentence
imposed, this court reviews for plain error.1
      Even if the district court committed obvious error, Hernandez-Lopez is not
entitled to relief because he cannot satisfy the third prong of plain-error review.
Specifically, he has not described – much less proved – how a better explanation
would have changed his 77-month sentence.2 Therefore, Hernandez-Lopez has
not shown that the district court reversibly erred by failing adequately to explain
the sentence and to address his nonfrivolous arguments for a lower sentence.
      Hernandez-Lopez also contends that the district court committed
procedural error by failing to consider the § 3553(a) factors, including his decade-
long history of drug abuse and his need for drug treatment. Because he failed
to object to this alleged procedural error in the district court, this court reviews
for plain error.3     Although Hernandez-Lopez did not raise these mitigation
arguments before the district court, the court did note that it had considered the
§ 3553(a) factors.      Further, Hernandez-Lopez’s history of drug abuse was
documented in the presentence report, which the district court adopted. Because
the district court imposed a discretionary sentence within the properly
calculated guideline range, this court infers that the district court considered all
of the § 3553(a) factors.4 Therefore, Hernandez-Lopez has failed to show that the
district court committed a significant procedural error.
      Finally, Hernandez-Lopez contends that his sentence was greater than
necessary to accomplish the sentencing goals set forth in § 3553(a), and was



      1
          See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009).
      2
       See id. at 365 (“[T]o show substantial prejudice, the defendant must prove
that the error affected the sentencing outcome.”).
      3
          See id. at 361.
      4
          See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

                                          2
                                    No. 09-40247

therefore substantively unreasonable. Specifically, he argues that the prior
offense generating the 16-level increase was committed nearly 14 years before
the offense in this case and was comparatively minor because it involved the
delivery of three rocks of cocaine to an undercover officer for $60. He also argues
that because his prior drug trafficking offenses occurred during a time when he
was abusing illegal drugs, it was unfair to subject him to the full rigors of a
guideline range that would apply to a non-user with the same conviction record.
Further, Hernandez-Lopez argues that his prior illegal reentry conviction had
a disproportionate effect on his sentence because it accounted for six of his
twelve criminal history points and was the genesis of his consecutive 21-month
supervised release revocation sentence.
      This court generally reviews “the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” 5 Hernandez-Lopez,
though, did not object to the length of his sentence, so here we review for plain
error.6 Regardless, Hernandez-Lopez’s argument fails under either standard of
review.
      The district court considered Hernandez-Lopez’s requests for downward
departure and variance, and it ultimately determined that a sentence at the
bottom of the applicable guideline range was appropriate based on the
circumstances of the case and the § 3553(a) factors.            Hernandez-Lopez’s
assertions are insufficient to rebut the presumption of reasonableness.7
Therefore,      Hernandez-Lopez     has   failed   to   show   that   his   sentence
was substantively unreasonable.
      AFFIRMED.


      5
          Gall v. United States, 552 U.S. 38, 51 (2007).
      6
          See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      7
       See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).

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