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

                                                FILED
                                                                October 20, 2009
                                No. 08-41288
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ELIAS SANDOVAL-ROJAS,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:08-CR-978-ALL


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Elias Sandoval-Rojas appeals the 57-month sentence imposed following his
guilty-plea conviction for illegal reentry following previous deportation. He
argues that the district court committed significant procedural error by imposing
a sentence within the pertinent guidelines range without giving specific reasons
for rejecting his nonfrivolous arguments in favor of a sentence below this range.
He requests this court to vacate his sentence.



      *
      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should not be published and is not precedent except under the limited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. 08-41288

      We review Sandoval-Rojas’s argument for plain error because he raises it
for the first time on appeal. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5, 2009) (No.
08-11099). To show plain error, Sandoval-Rojas must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if the error substantially
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      Even if the district court erred by not providing adequate reasons for
rejecting Sandoval-Rojas’s arguments, he still has not shown that he should
receive relief on this claim. This is because Sandoval-Rojas has failed to show
that a more extensive explanation for his sentence would have resulted in his
receiving a different sentence.    See Mondragon-Santiago, 564 F.3d at 364.
Additionally, Sandoval-Rojas’s argument that U.S.S.G. § 2L1.2 is not
empirically-based, and therefore, his sentence should not be afforded the
appellate presumption of reasonableness has consistently been rejected by this
court. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009), cert.
denied, 2009 WL 3162196 (Oct. 5, 2009) (No. 09-6195); Mondragon-Santiago, 564
F.3d at 366-67. Because the district court imposed a sentence within a properly
calculated guidelines range, it is presumptively reasonable. See Rita v. United
States, 551 U.S. 338, 346-47 (2007).        Sandoval-Rojas’s assertions that his
criminal history was overstated are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir.), cert. denied, 129 S. Ct. 624 (2008); United States v. Rodriguez, 523 F.3d
519, 526 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Because Sandoval-Rojas
has not shown that the sentence imposed was unreasonable, his sentence is
AFFIRMED.




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