     Case: 18-11299      Document: 00515074564         Page: 1    Date Filed: 08/13/2019




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

                                                                            FILED
                                    No. 18-11299                      August 13, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ROSALES, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-69-1


Before DAVIS, SMITH and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jose Rosales, Jr., pleaded guilty to one count of possession with the
intent to distribute a controlled substance and was sentenced above the
advisory guidelines range to 24 months of imprisonment and a two-year term
of supervised release. On appeal, he argues that his sentence is substantively
unreasonable. He also argues that the district court plainly erred by imposing
a condition of supervised release requiring that he “permit a probation officer


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11299

to visit him at any time at home or elsewhere” and “permit confiscation of any
contraband observed in plain view” of the probation officer.
      As to Rosales’s challenge to the substantive reasonableness of his
sentence, while we generally review the substantive reasonableness of a
sentence imposed for an abuse of discretion, see Gall v. United States, 552 U.S.
31, 51 (2007), we require an objection in the district court to substantive
reasonableness after sentence is pronounced to preserve error. See United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). 1             Nonetheless, Rosales’s substantive
reasonableness challenge fails even under the abuse-of-discretion standard of
review. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010)
(declining to decide standard of review and applying more lenient standard).
      In determining substantive reasonableness, we consider “the totality of
the circumstances, including the extent of any variance from the Guidelines
range.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal
quotation marks and citation omitted).            Here, the district court made an
individualized assessment as to Rosales and was free to conclude that in this
case, the advisory guidelines range gave insufficient weight to some of the
sentencing factors. See United States v. Williams, 517 F.3d 801, 809 (5th Cir.
2008). The district court’s reasons for imposing a variance adequately reflected
the sentencing factors in 18 U.S.C. § 3553(a).             While Rosales’s 24-month
sentence is 12 months longer than the highest sentence that could have been
imposed under his advisory guidelines range, that variance is nevertheless
within the range that we have held to be reasonable. See Lopez-Velasquez, 526
F.3d at 806-07.


      1  The Supreme Court’s grant of certiorari in Holguin-Hernandez v. United States, No.
18-7739, 2019 WL 429919 (U.S. June 3, 2019), does not disturb our precedent. See United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).


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                                  No. 18-11299

      As to Rosales’s challenge to the condition of supervised release, because
Rosales did not object to the imposition of the condition, our review is for plain
error. See United States v. Salazar, 743 F.3d 445, 448 (5th Cir. 2014). To
prevail on plain error review, Rosales must identify (1) a forfeited error, (2)
that is clear or obvious, rather than subject to reasonable dispute, and (3) that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he satisfies the first three requirements, this court may, in its
discretion, remedy the error if the error seriously affects the fairness, integrity
or public reputation of judicial proceedings. See id. Rosales has not shown
that the district court’s imposition of the condition was a clear or obvious error.
See United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019).
      AFFIRMED.




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