     Case: 11-40807     Document: 00511797564         Page: 1     Date Filed: 03/22/2012




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

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-40807
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CRUZ MURO-VALDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-261-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Cruz Muro-Valdez (Muro) appeals the 46-month sentence imposed
following his guilty plea conviction of illegal reentry. He argues that the within
guidelines sentence is procedurally and substantively unreasonable.1 Muro


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         He also raises, solely for purposes of preserving for further appellate review, the
argument that the presumption of reasonableness afforded within guidelines sentences should
not apply to sentences calculated under U.S.S.G. § 2L1.2 because that Guideline is flawed.
He concedes, however, that his argument is foreclosed by circuit precedent. See, e.g., United
States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009).
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                                  No. 11-40807

argues that the district court failed to adequately explain the sentence because
the court did not specifically address his nonfrivolous arguments in support of
a below guidelines sentence in light of a then pending amendment to
§ 2L1.2(b)(1)(B). He also argues that the sentence is substantively unreasonable
based on the staleness of the offense underlying the § 2L1.2(b)(1)(B) adjustment
and the district court’s erroneous evaluation of the seriousness of his prior
criminal history.
      This court ordinarily reviews sentences for reasonableness by engaging in
a bifurcated review. See Gall v. United States, 552 U.S. 38, 51 (2007). First, this
court must ensure that the sentencing court committed no 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 - including an explanation for any
deviation from the Guidelines range.” Id. If the sentence is procedurally sound,
this court then considers whether the sentence is substantively reasonable. Id.
      Muro did not object to the sentence below, and correctly concedes that
review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). To show plain error, the appellant must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If the appellant 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.
      Where a district court “decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation.” Rita
v. United States, 551 U.S. 338, 356 (2007). “Where the defendant or prosecutor
presents nonfrivolous reasons for imposing a different sentence, however, the
judge will normally go further and explain why he has rejected those

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                                 No. 11-40807

arguments.” Id. at 357. This explanation by the district court will “allow for
meaningful appellate review.” Gall, 552 U.S. at 50.
      At sentencing, Muro argued that he should be sentenced to 24 months of
imprisonment because a proposed amendment to § 2L1.2(b)(1)(b) would reduce
the adjustment to his offense level based on a stale conviction from 12 levels to
eight levels. As a result of the application of the proposed amendment, the
guidelines range of imprisonment would be reduced from 37 to 46 months to 24
to 30 months. The district court stated that the court was aware of the proposed
amendment to the guidelines. In rejecting Muro’s request for a below guidelines
sentence based on the application of that amendment, the district court
explained that a guidelines sentence was warranted based on Muro’s five prior
deportations and his extensive criminal history. The district court based the
sentence on Muro’s characteristics and history and the need to protect the public
from his dangerous criminal behavior, namely, his repeated impaired driving
offenses. The record shows that the court listened to Muro’s statements and
counsel’s arguments at the sentencing hearing and gave reasons for rejecting the
request for a below guidelines sentence. The district court’s explanation was
adequate and did not constitute reversible plain error.        See Mondragon-
Santiago, 564 F.3d at 362-65.
      Because Muro’s sentence was within the guidelines range, his sentence is
presumptively reasonable. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). The presumption of reasonableness “is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” Cooks, 589
F.3d at 186.
      This court has recognized that “the staleness of a prior conviction used in
the proper calculation of a guidelines-range sentence does not render a sentence
substantively unreasonable,” nor does it “destroy the presumption of

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                                  No. 11-40807

reasonableness that attaches to such sentences.” See United States v. Rodriguez,
660 F.3d 231, 234 (5th Cir. 2011).             The subsequent amendment of
§ 2L1.2(b)(1)(B) does not undermine the reasoning in Rodriguez. Cf. United
States v. Scott, 654 F.3d 552, 557-58 (5th Cir. 2011). Furthermore, Muro’s
disagreement with the district court’s assessment of the seriousness of his
criminal history is insufficient to rebut the presumption of reasonableness
afforded his within guidelines sentence. See United States v. Ruiz, 621 F.3d 390,
398 (5th Cir. 2010).
      Muro fails to overcome the presumption that his sentence was
substantively reasonable, see Cooks, 589 F.3d at 186, and has not demonstrated
that the district court plainly erred in imposing the 46-month sentence. See
Puckett, 556 U.S. at 135. Accordingly, the judgment is AFFIRMED.




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