     Case: 11-41236     Document: 00511900374         Page: 1     Date Filed: 06/26/2012




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

                                                                            FILED
                                                                           June 26, 2012
                                     No. 11-41236
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAFAEL ANTONIO SALVADOR-GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-707-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Rafael Antonio Salvador-Garcia (Salvador) appeals his 53-month
guidelines sentence for illegal reentry. He contends for the first time that the
sentence was procedurally unreasonable because the district court failed to
address his nonfrivolous arguments for a downward variance. As in Rita v.
United States, 551 U.S. 338, 356 (2007), Salvador presented “straightforward,
conceptually simple arguments” in support of a non-guidelines sentence. He
argued, inter alia, that he was culturally assimilated as a youth, rehabilitated

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41236

during his long prison term, motivated to return to the United States from El
Salvador by the fear of brutal gang violence, and far removed from his two prior
convictions in 1993 for aggravated robbery. The record reflects that the district
court listened to his arguments and responded to several of them. In imposing
the guidelines sentence, the court explained that it considered the § 3553(a)
factors, particularly its duty to protect the public in light of Salvador’s criminal
history. We find no clear or obvious error under these circumstances. See id. at
357-59. Moreover, Salvador concedes that he cannot show that any error
affected the sentencing outcome. See United States v. Mondragon-Santiago, 564
F.3d 357, 365 (5th Cir. 2009). Accordingly, he fails to establish plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
      Salvador also contends for the first time that the district court failed to
consider the sentencing factors under § 3553(a). Although the district court did
not refer to each of the § 3553(a) factors, it was not required to do so. See United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). When a guidelines sentence
is imposed, we “infer that the judge has considered all the factors for a fair
sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005). We find no error, plain or otherwise.
      Citing United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir.
2009), Salvador challenges the substantive reasonableness of his sentence on the
grounds that his aggravated robbery convictions are stale and he has no
subsequent criminal history. He asserts that he was rehabilitated in prison, he
made a concerted effort to remain in El Salvador after his deportation, and he
was compelled to return by gang violence. He asserts that his guidelines
sentence fails to account for these factors and that it represents a clear error of
judgment by the district court in balancing the sentencing factors.
      The district court listened to Salvador’s arguments for a downward
variance and determined that a guidelines sentence was appropriate. The court
gave greater weight to Salvador’s criminal history, which included four armed

                                         2
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                                 No. 11-41236

robberies, and the related need to protect the public, than to Salvador’s claims.
We give due deference to the district court’s weighing of the sentencing factors
because it “sees and hears the evidence, makes credibility determinations, has
full knowledge of the facts and gains insights not conveyed by the record.” Gall
v. United States, 552 U.S. 38, 51 (2007) (internal quotation marks and citation
omitted). Salvador has not shown that the district court abused its discretion
in weighing incommensurable factors under § 3553(a). See United States v.
Hernandez, 633 F.3d 370, 375-76 (5th Cir.), cert. denied, 131 S. Ct. 3006 (2011).
He also fails to show that the guidelines range did not account for a factor that
should have received significant weight, and he fails to overcome the
presumption that his guidelines sentence was reasonable. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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