     Case: 18-10750      Document: 00514826666         Page: 1    Date Filed: 02/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                    No. 18-10750                         FILED
                                  Summary Calendar                February 7, 2019
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


                                                 Plaintiff-Appellee

v.

JOSE FERNANDO AVENDANO-HERRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-553-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Jose Fernando Avendano-Herrera appeals the 20-month below-
guidelines sentence imposed following his guilty plea to having been found
unlawfully in the United States following removal.               He contends that his
sentence is procedurally unreasonable because the district court did not
articulate that the applicable guidelines range was one-to-seven months of
imprisonment and because it did not adequately explain its reasons for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-10750

imposing what he views as an above-guidelines sentence. Avendano-Herrera
also contends that the 20-month sentence is substantively unreasonable.
      The general objection that Avendano-Herrera raised in the district court
following the pronouncement of sentence to the procedural reasonableness of
his sentence did not preserve the specific issues he raises on appeal. See United
States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Accordingly, our review
is for plain error. See id.; see also Puckett v. United States, 556 U.S. 129, 135
(2009). As pertinent to his first claim of procedural error, Federal Rule of
Criminal Procedure 32 directs a district court to rule on “any disputed portion
of the presentence report or other controverted matter.” FED. R. CRIM. P.
32(i)(3)(B); see U.S.S.G. § 6A1.3(b), p.s. A defendant generally is provided
adequate notice of the district court’s resolution of disputed facts when the
court adopts the findings of the presentence report. United States v. Mora, 994
F.2d 1129, 1141 (5th Cir. 1993). Here, the district court’s statements at the
sentencing hearing indicate that the court was overruling Avendano-Herrera’s
objection to the date used to assess criminal history points and relying on the
presentence report’s recommendation. Furthermore, in its written Statement
of Reasons, the district court specifically adopted the presentence report’s
factual findings and guidelines application, including the 30-to-37-month
sentencing range. Therefore, Avendano-Herrera’s argument that the district
court erred under Rule 32 is without merit. See Mora, 994 F.2d at 1141.
      Nor has Avendano-Herrera shown that the district court plainly erred
with respect to the sufficiency of its explanation for the sentence it imposed.
The district court listened to Avendano-Herrera’s reasons for requesting a six-
month sentence, including that he had lived a crime-free life during the
preceding 10 years. When imposing the 20-month sentence, the district court
expressly noted that it had taken into account the 18 U.S.C. § 3553(a) factors,



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                                 No. 18-10750

the Sentencing Guidelines, and the sentences it had imposed on similar
defendants. Even if the district court “might have said more,” the record makes
clear that the court considered the evidence and arguments, and its statement
of reasons was legally sufficient. See Rita v. United States, 551 U.S. 338, 358-
59 (2007); see also United States v. Mondragon-Santiago, 564 F.3d 357, 365
(5th Cir. 2009). Thus, Avendano-Herrera has not shown a clear or obvious
error with respect to the adequacy of the reasons. See Puckett, 556 U.S. at 135.
Moreover, he has not shown that the alleged error affected his substantial
rights, because he has not established that a more thorough explanation would
have resulted in a lower sentence. See Mondragon-Santiago, 564 F.3d at 364-
65.
       In challenging the substantive reasonableness of the sentence,
Avendano-Herrera has not shown that the court failed to take into account a
significant factor or that it gave significant weight to an improper factor or
committed a clear error in judgment in balancing the § 3553(a) factors. See
United States v. Simpson, 796 F.3d 548, 558 (5th Cir. 2015).         Avendano-
Herrera’s disagreement with the propriety of the sentence or the weight given
to the § 3553(a) factors by the district court does not suffice to rebut the
presumption of reasonableness that applies to his below-guidelines sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007); Simpson, 796 F.3d at 557
& n.51.
       The judgment of the district court is AFFIRMED.




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