     Case: 09-50317     Document: 00511571387         Page: 1     Date Filed: 08/15/2011




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

                                                                            FILED
                                                                          August 15, 2011
                                     No. 09-50317
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID WAYNE GARLAND,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:08-CR-149-4


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        David Wayne Garland appeals the 151-month prison term imposed on his
guilty plea conviction for conspiring to possess with intent to distribute and
distributing crack cocaine.         See 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C).
Garland contends that his sentence was unreasonable and that the district court
erred by not explaining why it rejected his request for a below-guidelines
sentence and instead selected the sentence it did.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-50317

      Appellate courts are to review sentences for reasonableness in light of the
sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v. United States, 552
U.S. 38, 46, 49-50 (2007).      Ordinarily, an appellate court reviewing for
reasonableness “merely asks whether the trial court abused its discretion.” Rita
v. United States, 551 U.S. 338, 351 (2007). “Reasonableness review is bifurcated.
Gall, 552 U.S. at 51. The appellate court must first decide whether the district
court committed any procedural errors, “such as failing to calculate (or
improperly calculating) the Guidelines range [or] failing to consider the § 3553(a)
factors.” Id. If the sentence is procedurally sound, the appellate court next
considers “the substantive reasonableness of the sentence.” Id.
      Although Garland moved for a sentence below the guidelines range, he did
not object that the district court had failed to explain the sentence, nor did he
otherwise alert the district court to any objections to the sentence. Therefore,
the usual abuse of discretion standard does not apply, and Garland’s claims of
error must instead be reviewed using the plain error standard. See United
States v. Mondragon-Santiago, 564 F.3d. 357, 361 (5th Cir. 2009). To succeed,
Garland must at least satisfy the first three of the plain error standard’s four
prongs—i.e., he must demonstrate that the district court committed (1) an error
(2) that was clear or obvious and (3) that affected his substantial rights. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      Garland cannot prevail on his claim that the district court failed to explain
his sentence. “[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation.” Rita,
551 U.S. at 356. In the instant case, the district court adopted the presentence
investigation report and accepted the guidelines sentencing range calculation set
forth therein, thus implicitly accepting the probation officer’s assessment that
no mitigating factors existed to support a downward departure. Additionally,
because Garland’s sentence is “within a properly calculated Guideline range,” an
inference arises that the district court considered “all the factors for a fair

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                                   No. 09-50317

sentence set forth in the Guidelines.” See United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005). But we need not decide whether the district court “set forth
enough to satisfy [us] that [it] considered the parties’ arguments and [had] a
reasoned basis for exercising [its] own legal decisionmaking authority.” Id.
Even assuming that Garland has shown that the district court committed an
error that was clear or obvious, he has failed to show that the purported error
affected his substantial rights, i.e., that it affected the outcome of the case; he
makes no attempt to show that further explanation would have resulted in a
lesser sentence. See Puckett, 129 S. Ct. at 1429; Mondragon-Santiago, 564 F.3d
at 364. Therefore, Garland is not entitled to relief on this claim on plain error
review.
      Nor does he succeed on his claim of substantive unreasonableness. Being
within the properly calculated guidelines range, Garland’s sentence is entitled
to a presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006); see also Rita, 551 U.S. at 347. Garland advances no persuasive
reason to disturb the sentence selected by the district court. See Gall, 552 U.S.
at 51. Even if we were to conclude that a different sentence were a reasonable
sentence for Garland, that would be “insufficient to justify reversal of the district
court.” Id.; see also United States v. York, 600 F.3d 347, 361-62 (5th Cir.), cert.
denied, 131 S. Ct. 185 (2010).
      AFFIRMED.




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