     Case: 17-10970      Document: 00514423188         Page: 1    Date Filed: 04/10/2018




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


                                    No. 17-10970
                                                                                 FILED
                                                                             April 10, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMILIO GARCIA GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-37-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Emilio Garcia Garcia appeals the sentence imposed following his guilty
plea conviction for illegal reentry following removal in violation of 8 U.S.C.
§ 1326. Garcia argued that a downward departure was warranted based on
two factors: his time served in state custody and his cultural assimilation. The
district court declined to depart from the guidelines and sentenced Garcia
within the guidelines range to 17 months of imprisonment. The district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10970

noted that a within-guidelines sentence was adequate to “reflect the
seriousness of the offense conduct, as well as the statutory sentencing factors
of [18 U.S.C.] § 3553(a)” and that there was “no reason to vary from the
Guidelines.”   Garcia argues that his sentence is both procedurally and
substantively unreasonable.
      To the extent that Garcia argues that the district court erred by denying
his motion for a downward departure, the record does not reflect that the
district court mistakenly believed it lacked authority to depart. Thus, we lack
jurisdiction to review the propriety of the district court’s decision to deny a
downward departure. See United States v. Jefferson, 751 F.3d 314, 322-23 (5th
Cir. 2014).
      We review Garcia’s argument that the district court failed to adequately
address his time served in state custody in imposing the 17-month sentence for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Wooley, 740 F.3d 359, 367 (5th Cir. 2014). Although the district court
did not provide specific reasons for rejecting Garcia’s argument, its failure to
do so did not constitute plain error given that the district court read Garcia’s
written submission, listened to his arguments at sentencing, expressly rejected
the argument, and concluded that a sentence within the guidelines range was
adequate to address the § 3553 sentencing goals. See Puckett, 556 U.S. at 135;
Rita v. United States, 551 U.S. 338, 356 (2007); United States v. Rodriguez, 523
F.3d 519, 525-26 (5th Cir. 2008).
      Further, although Garcia argues that his 17-month sentence is
substantively unreasonable because the district court failed to take into
account his cultural assimilation as a factor under § 3553(a), he has failed to
overcome the presumption of reasonableness afforded his within-guidelines




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                                No. 17-10970

sentence. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED.




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