     Case: 10-50364 Document: 00511310866 Page: 1 Date Filed: 12/03/2010




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

                                                 FILED
                                                                          December 3, 2010
                                     No. 10-50364
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ALFREDO GRIJALVA-VARGAS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-3215-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Alfredo Grijalva-Vargas appeals his within-Guidelines sentence of 14
months’ imprisonment, following his guilty-plea conviction for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326(a). Grijalva contends his
sentence, which is at the top of the advisory Guidelines Sentencing range, is:
substantively unreasonable because it is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a) because it does not properly account for
his mitigating history and characteristics, including his cultural assimilation

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-50364 Document: 00511310866 Page: 2 Date Filed: 12/03/2010

                                  No. 10-50364

and motives for returning to the United States; and not entitled to a
presumption of reasonableness because the district court improperly imposed the
sentence based on its opposition to his tattoos.
      Grijalva does not claim his sentence is procedurally unreasonable.
Grijalva also concedes he did not object in district court to the substantive
reasonableness of his sentence, but he maintains he was not required to do so,
claiming it is our duty to determine whether his sentence is reasonable. He
recognizes this contention is foreclosed in this circuit and raises it only for
possible future review. Accordingly, we review only for plain error. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under this standard,
Grijalva must show a clear or obvious error affecting his substantial rights. E.g.,
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). When, as here, the
district court imposes a sentence within a properly-calculated Guidelines range,
we   accord   great   deference   and   apply    a   rebuttable   presumption    of
reasonableness. Gall v. United States, 552 U.S. 38, 51-52 (2007); United States
v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      Grijalva has failed to show the district court committed plain error by not
imposing a lower sentence based on his cultural assimilation and motives. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United
States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Although cultural
assimilation is a factor the district court may consider in deciding whether to
depart from the advisory Guidelines range, it is one of many in such a fact-
intensive inquiry. See United States v. Castillo, 386 F.3d 632, 638 (5th Cir.
2004); see also U.S.S.G. § 2L1.2 cmt. n.8. Similarly, whether to impose a lower
sentence based on Grijalva’s motives was part of the inquiry. The court did not
err in refusing to mitigate his offense on that basis.
      Finally, Grijalva has failed to rebut the presumption of reasonableness
afforded his within-Guidelines sentence. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). There is no evidence, certainly not sufficient to show

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                                 No. 10-50364

plain error, that the court based its decision on Grijalva’s tattoos. Instead, it
adopted the presentence investigation report, which described Grijalva’s tattoos;
and, during sentencing, it referenced his tattoos as reflecting he “h[u]ng around
a pretty tough crowd”.
      AFFIRMED.




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