     Case: 09-40728 Document: 00511430223 Page: 1 Date Filed: 03/31/2011




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

                                                 FILED
                                                                           March 31, 2011
                                     No. 09-40728
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

SAUL MARTINEZ-MENDOZA,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 5:09-CR-187-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Saul Martinez-Mendoza appeals the sentence that followed his guilty plea
conviction of illegal reentry, arguing that the sentence is procedurally unreason-
able because the district court failed to give his lawyer an opportunity to allocute

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40728 Document: 00511430223 Page: 2 Date Filed: 03/31/2011

                                  No. 09-40728

as required by Rule 32 of the Federal Rules of Criminal Procedure. Although
counsel stated that he wished to make a statement, he did not later object or call
the court’s attention to its failure to allow him to speak. Therefore, review is
limited to plain error. See United States v. Vasquez, 216 F.3d 456, 458 (5th Cir.
2000). To demonstrate plain error, Martinez-Mendoza must show a forfeited er-
ror that is clear or obvious and 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.
      The district court allowed counsel an opportunity to speak at the begin-
ning of the sentencing hearing, and counsel stated that Martinez-Mendoza
wished to make a statement first. Martinez-Mendoza has not shown that the
failure to ask counsel again if he wished to make a statement is clear and obvi-
ous error. Further, Martinez-Mendoza has not established that any error affect-
ed his substantive rights, because he has not identified any specific arguments
his attorney would have made that might have persuaded the court to impose
a lower sentence. See Vasquez, 216 F.3d at 458.
      Martinez-Mendoza argues that the sentence was procedurally unreason-
able because the court failed to consider a departure under U.S.S.G. § 4A1.3
before imposing an upward variance. Because Martinez-Mendoza did not raise
this issue in the district court, review is limited to plain error. See Puckett, 129
S. Ct. at 1429. Martinez-Mendoza concedes that the argument is foreclosed by
United States v. Mejia-Huerta, 480 F.3d 721, 723 (5th Cir. 2007). Contrary to his
argument, neither the Supreme Court nor this court has held that sentencing
courts are required to consider departures under § 4A1.3 before imposing a vari-
ance. See Gall v. United States, 552 U.S. at 49-51 (2007); United States v.
Gutierrez-Hernandez, 581 F.3d 251, 255-56 (5th Cir. 2009); United States v.
Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
      Martinez-Mendoza asserts that the sentence was procedurally unreason-

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                                  No. 09-40728

able because the district court did not adequately explain the extent of the vari-
ance. Because he did not raise this issue in the district court, review is limited
to plain error. See Puckett, 129 S. Ct. at 1429. The court gave a lengthy explan-
ation of the reasons for the upward variance, including Martinez-Mendoza’s ex-
tensive criminal history over a twenty-five-year period, his likelihood of recidi-
vism, and the 18 U.S.C. § 3553(a) factors concerning the need to promote respect
for the law and deter future criminal conduct. Therefore, Martinez-Mendoza has
not shown plain error with respect to the adequacy of the reasons for the upward
variance. See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
      Martinez-Mendoza contends that the sentence was substantively unrea-
sonable because the district court gave too much weight to his criminal history
and too little to his family circumstances and cultural assimilation. The court
implicitly considered the information in the presentence report concerning Mar-
tinez-Mendoza’s family circumstances and cultural assimilation, as well as his
statement at sentencing. Although cultural assimilation may be a mitigating
factor, the court was not required to accord it dispositive weight. See United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Martinez-Mendoza
has not shown that the court improperly considered or gave too much weight to
his criminal history. See United States v. Brantley, 537 F.3d 347, 348-50 (5th
Cir. 2008).
      Further, this court has affirmed similar variances. See id.; United States
v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008); United States v.
Smith, 417 F.3d 483, 492-93 & n.40 (5th Cir. 2005). The sentence was reasona-
ble under the totality of the relevant statutory factors. See Brantley, 537 F.3d
at 349. Martinez-Mendoza’s disagreement with the balancing of the § 3553(a)
factors is insufficient to show that the sentence was substantively unreasonable.
See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.



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