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

                                                FILED
                                                                 August 6, 2009
                                No. 08-41242
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

CESAR GUSTAVO PAYAN-CARILL, also known as Jesus Manuel Mata-Carillo,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:08-CR-898-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Cesar Gustavo Payan-Carill (Payan) appeals the sentence imposed
following his plea of guilty to one count of being in the United States unlawfully
after deportation. The 57-month sentence was at the bottom of the properly
calculated guideline range. Payan contends that the sentence is unreasonable
because the district court failed to explain adequately the reasons for the
sentence. He further argues that the sentence was excessive and that this court



      *
      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should not be published and is not precedent except under the limited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. 08-41242

should not apply a presumption of reasonableness because the guideline
provision for a 16-level increase for a prior felony is not empirically grounded.
         We begin our review by determining whether the district court committed
any “significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). If the sentencing decision is
procedurally sound, we then consider “the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.
         Payan’s contention that the district court failed to give an adequate
explanation of the sentence is reviewed for plain error because Payan did not
object     to   the   explanation   at   sentencing.   See   United    States   v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099). Any error was not reversible plain error.
         The district court read Payan’s written objections, heard his arguments,
and granted the Government’s motion for a third level of reduction for
acceptance of responsibility. The district court adopted the calculations and
reasoning of the presentence report and indicated that the 57-month sentence
at the bottom of the guideline range satisfied the factors of § 3553(a). Payan
fails to show that the district court’s explanation was clearly or obviously
inadequate. Cf. United States v. Rodriguez, 523 F.3d 519, 524-26 (5th Cir.), cert.
denied, 129 S. Ct. 624 (2008) (finding brief explanation adequate). Moreover,
Payan “fails to show that an explanation would have changed his sentence.”
Mondragon-Santiago, 564 F.3d at 365. He thus fails to show plain error. Id.
         Payan contends that his sentence was substantively unreasonable because
it was excessive. He contends that the guideline provision resulting in the 16-
level increase was not empirically grounded and is therefore not entitled to a
presumption of reasonableness in light of Kimbrough v. United States, 552 U.S.

                                          2
                                  No. 08-41242

85, 128 S. Ct. 558 (2007). Payan’s sentence was within the guideline sentencing
range and was presumptively reasonable, regardless of whether the guideline
provision upon which the sentence was based is empirically grounded. See
United States v. Duarte, __ F.3d __, 2009 WL 1515665, *1-*2 (5th Cir. June 1,
2009); see also Mondragon-Santiago, 564 F.3d at 366-67.
      Payan fails to show that his sentence is unreasonable. The judgment of
the district court is AFFIRMED.




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