     Case: 09-10627     Document: 00511069737          Page: 1    Date Filed: 04/05/2010




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

                                                  FILED
                                                                             April 5, 2010
                                     No. 09-10627
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHNNY BARRERA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CR-6-1


Before DeMOSS, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Johnny Barrera appeals the 51-month sentence imposed by the district
court following his guilty plea conviction for one count of bank robbery. He
argues that because United States v. Booker, 543 U.S. 220, 245 (2005), excised
18 U.S.C. § 3742(e), this court has jurisdiction to review the district court’s
denial of a downward departure for reasonableness.                   Barrera requested a
variance, rather than a downward departure, in his sentencing memorandum
and at the sentencing hearing, and the district court denied a variance.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10627    Document: 00511069737 Page: 2         Date Filed: 04/05/2010
                                 No. 09-10627

Therefore, the instant case does not involve the denial of a motion for a
downward     departure, and     this   court has    jurisdiction   to   review   the
reasonableness of the sentence imposed by the district court. See United States
v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007) (holding that jurisdiction exists
to review “whether the district court’s imposition of a guideline sentence instead
of a non-guideline sentence was reasonable”), abrogated on other grounds,
United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
      Barrera argues that the district court erred in sentencing him as a typical
bank robbery defendant because there are numerous factors warranting a lesser
sentence, including his father’s death when he was seven years old, his wife’s
current serious illness requiring his care, his support of his stepchildren, and his
financial difficulties which caused him to commit the instant offense. Because
Barrera did not challenge the reasonableness of his sentence in the district
court, review is for plain error. See United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). To show plain error, Barrera 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 only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Barrera has not shown that the district court’s imposition of the sentence
was error, plain or otherwise. The 51-month sentence is the lowest possible
sentence within the advisory guidelines range and is presumptively reasonable.
See Rita v. United States, 551 U.S. 338, 347 (2007). The district court considered
the advisory guidelines, the 18 U.S.C. § 3553(a) factors, Barrera’s sentencing
memorandum, and the statements given by Barrera and his mother-in-law at
sentencing; the district court stated that the sentence was sufficient to achieve
the sentencing objectives of punishment, deterrence, and protection of the public.
Even if this court might have imposed a lesser sentence, this court’s



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   Case: 09-10627   Document: 00511069737 Page: 3        Date Filed: 04/05/2010
                                No. 09-10627

disagreement with the district court is insufficient to justify reversal of the
district court. See United States v. Gall, 552 U.S. 38, 51 (2007).
      AFFIRMED.




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