     Case: 11-51060     Document: 00511906893         Page: 1     Date Filed: 07/02/2012




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

                                                                            FILED
                                                                            July 2, 2012
                                     No. 11-51060
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE PALOMO-DELGADILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-405-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jose Palomo-Delgadillo appeals the 36-month below-guidelines sentence
imposed following his conviction for illegal reentry after deportation. Palomo-
Delgadillo challenges only the substantive reasonableness of his sentence,
arguing that the sentence is greater than necessary to accomplish the sentencing
objectives of 18 U.S.C. § 3553(a). In light of his personal circumstances and
characteristics, he contends that a 24-month sentence was more appropriate.
Specifically, he argues that his offense was not violent and that it involved only

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51060    Document: 00511906893     Page: 2   Date Filed: 07/02/2012

                                  No. 11-51060

a trespass across an international border. He further states that he had been
a good worker in the United States and that he had only one prior conviction.
Additionally, Palomo-Delgadillo argues that the guidelines overstated the
significance of his prior conviction.
      Palomo-Delgadillo concedes that he failed to object to his sentence after it
was imposed and that this court’s review is limited to plain error. Nevertheless,
he seeks to preserve for further review his contention that an objection after the
imposition of sentence is not required for abuse-of-discretion review. This court
need not determine whether plain error review is appropriate because Palomo-
Delgadillo’s arguments fail even under the abuse-of-discretion standard of
review. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court listened to Palomo-Delgadillo’s arguments for a lesser sentence but
found that a 36-month sentence, which was below the applicable guidelines
range, was appropriate. We afford “due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall,
552 U.S. at 51. Although Palomo-Delgadillo only had one prior felony for which
he received a 92-day sentence, the district judge rejected Palomo-Delgadillo’s
minimalization of his prior conviction for committing lewd acts on a child under
the age of fourteen.    The court concluded that a 36-month sentence was
appropriate to reflect the sentencing factors of § 3553(a) and to “retain the
seriousness of that one conviction.”         Considering the totality of the
circumstances, he has not shown sufficient reason for this court to disturb his
below-guidelines sentence. See United States v. Conn, 657 F.3d 280, 286 (5th
Cir. 2011).
      Accordingly, the judgment of the district court is AFFIRMED.




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