     Case: 10-50782 Document: 00511461370 Page: 1 Date Filed: 04/29/2011




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

                                                 FILED
                                                                            April 29, 2011
                                     No. 10-50782
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PABLO HOFFMAN-PORTILLO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:10-CR-511-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Pablo Hoffman-Portillo (Hoffman) appeals his concurrent 77-month
sentences imposed for his guilty plea convictions for importation of marijuana
and possession with intent to distribute marijuana. Hoffman challenges the
reasonableness of his sentence, arguing that it is greater than necessary to serve
the purpose of 18 U.S.C. § 3553(a).
       Generally, this court reviews a sentence for reasonableness. Gall v. United
States, 552 U.S. 38, 51 (2007).          A sentence within the properly calculated

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50782 Document: 00511461370 Page: 2 Date Filed: 04/29/2011

                                   No. 10-50782

guidelines range is entitled to a presumption of reasonableness on appeal. Rita
v. United States, 551 U.S. 338, 347 (2007). Hoffman acknowledges that he did
not object to the reasonableness of his sentence after it was imposed and that,
under this circuit’s precedent, review is for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, Hoffman is preserving
his objection to the application of the plain error standard for possible Supreme
Court review.
      To show reversible plain error, Hoffman must show a clear or obvious error
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). If Hoffman 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. In determining Hoffman’s sentence, the
district court considered Hoffman’s illegal reentry into the United States to
transport drugs although he had received two substantial sentences in this
country for his prior drug convictions. The district court considered counsel’s
arguments and Hoffman’s statement that he had committed the instant offense
because of the threats made by drug dealers against his family living in Mexico.
The district court pointed out that it was Hoffman’s prior involvement in the
drug business which linked him to the individuals who had threatened his
family.
      The record demonstrates that the district court considered the 18 U.S.C.
§ 3553(a) factors and Hoffman’s mitigating arguments at sentencing before
determining that a bottom-of-the guidelines sentence was an appropriate
sentence. Hoffman has failed to rebut the presumption of reasonableness that
this court applies to his guidelines sentence or to demonstrate plain error. Rita,
551 U.S. at 347; Puckett, 129 S. Ct. at 1429.
      Insofar as Hoffman is arguing that the district court erred in denying his
request for a downward departure or variance, there is no indication in the
record that the district court believed that it lacked the authority to do so.

                                         2
    Case: 10-50782 Document: 00511461370 Page: 3 Date Filed: 04/29/2011

                                  No. 10-50782

Therefore, the court lacks jurisdiction to review this issue. See United States v.
Lucas, 516 F.3d 316, 350-51 (5th Cir. 2008).
      The sentences are AFFIRMED.




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