     Case: 10-10355 Document: 00511302260 Page: 1 Date Filed: 11/23/2010




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

                                                 FILED
                                                                         November 23, 2010
                                     No. 10-10355
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FABIAN GARCIA-BAHENA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 1:09-CR-58-1


Before GARWOOD, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Fabian Garcia-Bahena pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326 and in March 2010 was sentenced to 51 months
of imprisonment and three years of supervised release. Garcia-Bahena appeals
his sentence, arguing only that the district court’s failure to explain the sentence
and address his nonfrivolous arguments in support of a lower sentence did not
satisfy the requirements of procedural reasonableness under Rita v. United
States, 127 S.Ct. 2456, 2468-691 (2007). Garcia-Bahena acknowledges that this

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10355

court reviews for plain error when a defendant fails to object to the district
court’s failure to explain the sentence. Nevertheless, he seeks to preserve for
further review his contention that an objection is not required when it is
premised on the district court’s failure to address arguments in support of a
lower sentence. Because Garcia-Bahena did not object to the district court’s
failure to explain the sentence (or make any other objection to the sentence in
the district court), plain error review applies.         See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009).
      There is nothing to indicate that the district court did not fully consider
and understand the defense arguments or the relevant facts. Both defense
counsel and government counsel “adopted” the PSR in writing, the defense
requesting notice “if the Court intends to award an upward departure or
variance” and the government requesting notice “if the Court intends to award
a downward departure without a government motion in support, or to impose a
non-guideline sentence that is lower than the guideline range stated in the
presentence report.” No such notice was given. No contention is made on
appeal, and none was made below, that the PSR was incomplete or omitted
material facts. It correctly states the advisory guideline imprisonment range as
41 to 51 months. It also states that “. . . there are no known mitigating or
aggravating factors that warrant a departure from the prescribed guideline
range.”
      At sentencing, after noting that the government and defense had adopted
the PSR and that the defendant had gone over it with his counsel, the court
stated: “The court then will adopt as the court’s findings those matters set forth
in the report, not only as it relates to the background data and information, but
also the analysis made under the sentencing guidelines.” After listening to
defense counsel’s argument for a below guideline sentence or “for a sentence at
the bottom of the range,” and hearing the defendant’s brief allocution (“no, just

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                                       No. 10-10355

to forgive me”), the court pronounced sentence and stated “I believe this sentence
does adequately address the sentencing objectives of punishment and deterrence,
as well as meeting those other factors as set forth in Title 18, United States
Code, Section 3553(a).” 1
       The district court’s failure to explain the within-guidelines sentence
beyond referring to punishment and deterrence was not error under Rita that
was clear or obvious. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th
Cir. 2008). Even if there were clear or obvious error, Garcia-Bahena has not
shown that the error affected his substantial rights. Garcia-Bahena has not
shown that an explanation for the rejection of his arguments would have
changed his within-guidelines sentence. See Mondragon-Santiago, 564 F.3d at
365. There is no reversible plain error, and the district court’s judgment is
AFFIRMED.




       1
         The day before sentencing defense counsel filed a three page “Motion for Downward
Departure or Variance” requesting “Downward Departure or Variance on the Basis of Cultural
Assimilation.” The court denied this motion the next day by a separate written two line order,
stating that the court “having considered” the motion “is of the opinion that the same should
be DENIED.”

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