     Case: 09-40785     Document: 00511070015          Page: 1    Date Filed: 04/05/2010




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

                                                  FILED
                                                                             April 5, 2010
                                     No. 09-40785
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR HUGO LUGO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1901-1


Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
        Victor Hugo Lugo appeals the 41-month sentence imposed by the district
court following his guilty plea conviction of possession of a firearm by an illegal
alien. Lugo argues that the district court procedurally erred by failing to state
adequate reasons for imposition of this sentence and that the court erred
substantively by imposing an unreasonable sentence. Although Lugo concedes
that these issues are reviewable only for plain error because they were not raised
before the district court, see United States v. Mondragon-Santiago, 564 F.3d 357

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40785    Document: 00511070015 Page: 2          Date Filed: 04/05/2010
                                 No. 09-40785

(5th Cir.), cert. denied, 130 S. Ct. 192 (2009), he seeks to preserve the issue of the
proper standard of review for possible further review.
      Lugo contends that the district court did not address his arguments that
he should receive a lower sentence because he had no prior criminal record;
there was no evidence that the firearm had been or was about to be used; there
was no evidence that he knew that the firearm had been stolen; it was
questionable whether the firearm was automatic; and he immediately took
responsibility for owning the firearm. It is clear from the sentencing transcript
that the district court considered and rejected Lugo’s arguments and that the
court was concerned with his prior conduct in illegally reentering the country,
as well as the type of weapon he possessed, an Intratec 9 millimeter pistol loaded
with an attached magazine containing 30 live rounds of ammunition, and the
circumstances in which he had purchased it. Even if the district court was not
specific in rejecting Lugo’s arguments and did not explain its reasons for
imposing a sentence at the top of the guidelines range, Lugo has not shown that
any error affected his substantial rights because he has not shown that an
explanation of his sentence by the district court would have changed his
sentence. See Mondragon-Santiago, 564 F.3d at 363-65.
      Similarly, Lugo’s assertion that his sentence is substantively unreasonable
because it does not take into account mitigating factors is without merit. Lugo
has not rebutted the presumption of reasonableness of his within guidelines
sentence and has not shown that the district court plainly erred in sentencing
him to 41 months of imprisonment. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      AFFIRMED.




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