     Case: 12-10656       Document: 00512178702         Page: 1     Date Filed: 03/19/2013




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

                                                                            FILED
                                                                          March 19, 2013
                                     No. 12-10656
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FAUSTO FERDINANDO MEDRANO-OCHOA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:12-CR-14-1


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Fausto Ferdinando Medrano-Ochoa (Medrano) pleaded guilty to illegal re-
entry of the United States after deportation and was sentenced within the
advisory guideline range to a 63-month term of imprisonment. His plea was
pursuant to an agreement, but he did not waive his appellate rights.
       Medrano argues that the district court erred by denying his request for an
additional one-level decrease for acceptance of responsibility. He asserts that
the Government improperly denied the additional level based on his refusal to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10656

waive his appellate rights. Medrano contends that the district court has the
authority to award the additional point despite the Government's failure to move
for it. He asserts that, if the district court were without the authority to award
the point, the power of the Government to withhold the additional point decrease
for acceptance of responsibility would violate the separation-of-powers doctrine.
      We have rejected virtually identical contentions. See United States v.
Newsom, 515 F.3d 374, 376-79 (5th Cir. 2008). A district court cannot award an
additional point for acceptance of responsibility absent a motion from the
Government pursuant to § 3E1.1. Id. at 378. Medrano’s argument regarding a
violation of the separation-of-powers doctrine is foreclosed by United States v.
Booker, 543 U.S. 220 (2005). See id. at 376.
      Medrano argues that his sentence is procedurally unreasonable because
the district court did not address his argument for a lesser sentence. He
contends that his request for leniency based on the staleness of his convictions
was sufficient to preserve his procedural reasonableness challenge. Medrano’s
failure to request a further explanation at sentencing results in plain error
review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). To succeed under the plain error standard, Medrano must show (1) a
forfeited error (2) that is clear or obvious and (3) that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that
showing, this court may exercise its discretion “to remedy the error . . . if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks, bracketing, and citation omitted).
      “The sentencing judge should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). Additionally, where the defendant “presents nonfrivolous
reasons for imposing a different sentence, . . . the judge will normally go further
and explain why he has rejected those arguments.” Id. at 357. However, the

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                                   No. 12-10656

explanation requirement is satisfied if the district court listens to the
defendant’s arguments and indicates that a sentence within the guidelines range
is appropriate. See id. at 357-59.
      The district court adopted the Presentence Report, which detailed
Medrano’s criminal history. It listened to Medrano’s arguments for leniency and
then expressed its determination that a 63-month sentence would adequately
address the sentencing objectives of deterrence and punishment. Medrano fails
to demonstrate that the district court committed a clear procedural error. See
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). Moreover, he
has not shown that the lack of a more complete explanation affected his
substantial rights. See Mondragon-Santiago, 564 F.3d at 365.
      Medrano also argues that his sentence is substantively unreasonable. We
review this issue for plain error because Medrano did not object to his sentence.
See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Although he
disagrees that such an objection is necessary to preserve error, Medrano
recognizes that we have ruled otherwise and raises the issue only to preserve it
for further review. See id.
      “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). “The presumption 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.” United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). Essentially, Medrano now argues that this court should
engage in impermissible “substantive second-guessing of the sentencing court.”
United States v. Cisneros-Gutierrez, 517 F.3d 751, 767 (5th Cir. 2008). He fails
to overcome the presumption of reasonableness afforded his within-guidelines
sentence. See Alonzo, 435 F.3d at 554.
      AFFIRMED.

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