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

                                                                FILED
                                                                May 15, 2008
                               No. 07-20073
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee
v.

CARLOS GALLEGOS

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:05-CR-478-2


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Carlos Gallegos pleaded guilty to count two of a superseding indictment
charging him with conspiring to commit hostage taking. Gallegos was sentenced
at the bottom of the guideline imprisonment range to a 324-month term of
imprisonment (consecutive to an undischarged term of imprisonment in number
4:05CR00266-002 in the United States District Court for the Southern District
of Texas) and to a five-year period of supervised release. Gallegos gave timely
notice of his appeal.


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-20073

      Gallegos contends that the district court erred in overruling his objection
to the probation officer’s recommendation that his offense level be increased by
three levels, pursuant to U.S.S.G. § 3B1.1(b) (2005), because of his leadership
role in the offense. Gallegos argues that he did not provide weapons to his
coconspirators, that he did not brandish a weapon during the offense, and that
he was not the only member of the conspiracy who negotiated over the telephone
for payment of ransom for the victim’s release.
      In Gall v. United States, 128 S. Ct. 586 (2007), the Supreme Court
bifurcated the process for reviewing a sentence: (1) appellate courts must first
ensure that the district court did not commit a significant procedural error, such
as treating the Guidelines as mandatory or failing to properly calculate the
guidelines range; and (2) if the sentence is procedurally sound, the appellate
court must then consider the “substantive reasonableness” of the sentence under
an abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d
751, ___ 2008 WL 383024 at *8 (5th Cir. Feb. 13, 2008) (citing Gall, 128 S. Ct.
at 597). We continue to review the district court’s interpretation or application
of the Guidelines de novo, and its factual findings for clear error. Id. We review
the district court’s determination that a defendant was a manager or supervisor
under § 3B1.1(b) for clear error. See United States v. Rose, 449 F.3d 627, 633
(5th Cir. 2006).
      Even if we assume, as Gallegos contends, that these facts were in dispute
because of Gallegos’s equivocations at the rearraignment, there was sufficient
remaining unrebutted information in the presentence report on which the district
court could base its finding that Gallegos was a manager or supervisor of the
conspiracy. Gallegos does not dispute that he negotiated by telephone with the
victim’s boss and brother, that he interrogated the victim, that he planned and
instructed the others with regard to the hostage exchange, and that he recruited
a coconspirator to be a participant in the conspiracy. These fact findings in the
presentence report bear sufficient indicia of reliability and Gallegos has not

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carried his burden of demonstrating that they are unreliable. See Rose, 449 F.3d
at 633. Because the facts that are not in dispute support the district court’s
finding that Gallegos was a manager or supervisor, any error on the part of the
district court in failing to explain its findings with respect to the disputed facts
did not affect Gallegos’s substantial rights and was harmless. See FED. R. CRIM.
P. 52(a).
      Gallegos contends that the sentence was unreasonable in view of the nature
and circumstances of the offense. In Rita v. United States, 127 S. Ct. 2456, 2462
(2007), the Supreme Court held that appellate courts may apply a presumption
of reasonableness to proper applications of the Sentencing Guidelines. In this
circuit, “a sentence within a properly calculated Guideline range is presumptively
reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). This
court “will give great deference to that sentence” and “will infer that the judge
has considered all the factors for a fair sentence set forth in the Guidelines.”
Mares, 402 F.3d at 519-20.
      The sentencing court has a duty to consider the factors of 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). After
determining Gallegos’s Guideline sentence, the district court found expressly
“that the sentencing guidelines adequately address all of the other Section 3553
factors.” Because the district court exercised its discretion to impose a sentence
within the guideline range, no additional explanation was required. See Mares,
402 F.3d at 519. Although Gallegos did request a downward departure in the
district court, Gallegos did not contest the Guideline sentence generally. See
Rita, 127 S. Ct. at 2468.      Gallegos has not rebutted the presumption of
reasonableness and the district court did not abuse its discretion in imposing a
Guidelines sentence. See Gall, 128 S. Ct. at 597; Alonzo, 435 F.3d at 554. The
judgment is
      AFFIRMED.



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