     Case: 16-10068      Document: 00513680028         Page: 1    Date Filed: 09/15/2016




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

                                    No. 16-10068                                   FILED
                                  Summary Calendar                         September 15, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIC SOTO GUERRERO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:03-CR-56-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eric Soto Guerrero has appealed the above-guidelines sentence imposed
upon revocation of his supervised release.            He contends the district court
plainly erred by failing to expressly reject his argument in favor of a more
lenient sentence. A plain error is a forfeited error that is clear or obvious and
affects the defendant’s substantial rights. United States v. Ellis, 564 F.3d 370,
377 (5th Cir. 2009). When those elements are shown, this court has the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10068      Document: 00513680028         Page: 2    Date Filed: 09/15/2016


                                      No. 16-10068

discretion to correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
       We assume Guerrero has shown the district court committed a clear or
obvious error in failing to explain its reasons for rejecting his arguments. See
United States v. Whitelaw, 580 F.3d 256, 261–62 (5th Cir. 2009). Guerrero
asserts that he should be relieved of his burden of showing his substantial
rights were affected by the error because it is reasonably probable that further
consideration of his arguments will result in a more lenient sentence and
because the district court’s failure to explain its reasons for rejecting his
argument has deprived him of meaningful appellate review. 1                         These
contentions are without merit.
       The district court stated the above-guidelines sentence was intended to
deter future criminal conduct and to protect the public. The district court had
before it a significant record of Guerrero’s inability to comply with the
conditions of his supervised release.            Although the district court did not
expressly reject Guerrero’s argument in favor of a more lenient sentence, it
imposed an above-guidelines sentence after listening to Guerrero’s argument.
The district court’s decision represents an implicit rejection of that argument,
and there is no reason to believe the district court would impose a different
sentence on remand. See id. at 263–65. Guerrero has not shown that the
district court’s error affected his substantial rights. Therefore we have no
reason to consider whether the error affected the fairness, integrity, or public
reputation of judicial proceedings.
       AFFIRMED.



       1 Guerrero contends, in the alternative, that Whitelaw was wrongly decided to the
extent that it held otherwise, and he states that he has raised the issue to preserve it for
further review.


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