     Case: 11-30060     Document: 00511614555         Page: 1     Date Filed: 09/27/2011




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

                                                                            FILED
                                                                        September 27, 2011
                                     No. 11-30060
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GREGORY K. CALETKA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CR-299-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Gregory K. Caletka was convicted pursuant to a guilty plea of committing
Social Security fraud by making materially false statements.                     42 U.S.C.
§ 408(a)(3). He was sentenced at the low end of his sentencing guidelines range
to an 18-month term of imprisonment. Caletka argues that the district court
should have granted his request for a downward departure or variance and that
its failure to do so resulted in a sentence that was greater than necessary to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). He contends that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30060

he was entitled to a shorter sentence in light of his severe physical impairments,
his age, his lack of a criminal history, and his low risk of recidivism.
      We lack jurisdiction to consider whether the district court erred in denying
Caletka a downward departure based on his physical impairments. We may
review the denial of a downward departure only if the district court erroneously
believed it lacked the authority to depart. United States v. Lucas, 516 F.3d 316,
350 (5th Cir. 2008). Caletka has not alleged, and the record does not indicate,
that the district court believed it lacked that authority. At sentencing, the
district court specifically noted that it could depart from the Sentencing
Guidelines under U.S.S.G. § 5H1.4 if it determined that Caletka had an
extraordinary physical impairment.
      We do have jurisdiction to consider whether, in light of the factors Caletka
raised in support of his argument for a downward departure, Caletka’s sentence
is greater than necessary to achieve the sentencing goals set forth in § 3553(a).
Generally, we review criminal sentences for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). If, however,
a defendant failed to object to an error at sentencing, we will review the issue for
plain error only. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United
States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007). A sentence that falls
within a defendant’s properly calculated guidelines range is entitled to a
rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
      In the district court Caletka requested a downward variance based on his
physical infirmities, lack of criminal history, age, and low risk of recidivism, but
he did not object to the reasonableness of the sentence imposed. It is unclear
under those circumstances whether Caletka’s arguments are limited to plain
error review. See Peltier, 505 F.3d at 391–92 (holding that a defendant’s failure
to object to the reasonableness of his sentence limits this court’s review to plain
error); but see United States v. Rodriguez, 523 F.3d 519, 525–26 & n.1 (5th Cir.

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                                 No. 11-30060

2008) (reviewing for abuse-of-discretion a district court’s denial of a downward
variance in a case where the defendant presented detailed assertions and
testimony in support of the variance, but did not specifically object to the
reasonableness of his sentence). This court need not resolve the issue because
Caletka’s sentence may be affirmed even under the more lenient abuse of
discretion standard.
      At sentencing, the district court considered and rejected Caletka’s
arguments for a below guidelines sentence. It found that Caletka’s lack of
criminal history was accounted for in the Guidelines and that his physical
problems, age, and low risk of recidivism did not outweigh the serious nature of
his offense. Although Caletka’s physical impairments could have supported a
sentence below the guidelines range, he cannot show that they would mandate
that result. See, e.g., United States v. Castillo, 430 F.3d 230, 240–41 (5th Cir.
2005); United States v. Winters, 105 F.3d 200, 208–09 (5th Cir. 1997); United
States v. Guarjardo, 950 F.2d 203, 208 (5th Cir. 1991). Caletka has presented
nothing to indicate that the district court abused its discretion in weighing the
§ 3553(a) factors. See United States v. Gomez-Herrera, 523 F.3d 554, 565–66
(5th Cir. 2008). His disagreement with the propriety of the sentence imposed
does not suffice to rebut the presumption of reasonableness that attaches to his
within-guidelines sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009), cert. denied 130 S. Ct. 1930 (2010).
      AFFIRMED.




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