     Case: 09-41258 Document: 00511279389 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                          October 29, 2010
                                     No. 09-41258
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

GUSTAVO MALDONADO-OLIVARES,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:09-CR-1220-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Proceeding in forma pauperis, Gustavo Maldonado-Olivares appeals his
within-Guidelines sentence of 70 months’ imprisonment, following his guilty-
plea conviction, for being knowingly and unlawfully present in the United States
following deportation, in violation of 8 U.S.C. §§ 1326(a) and (b). Maldonado
contends his sentence was procedurally unreasonable because the district court:
(1) erroneously based his sentence on finding there was no proof he illegally
reentered the United States as a result of his father’s alleged murder, and (2)

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41258 Document: 00511279389 Page: 2 Date Filed: 10/29/2010

                                   No. 09-41258

failed to adequately explain his sentence in the light of his assertions in favor of
a lower sentence.     He further maintains his sentence was substantively
unreasonable because the district court improperly weighed the sentencing
factors, set forth in 18 U.S.C. § 3553(a), by discounting his mitigation claim that
he feared for his life after the murder of his father. Maldonado contends that,
even if a presumption of reasonableness applies to his within-Guidelines
sentence, he rebutted the presumption.
      Arguably, Maldonado’s procedural objections should be reviewed only for
plain error because he arguably failed to raise a specific procedural objection in
district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir. 2009). Along that line, in district court, Maldonado raised two objections:
the court failed to adequately explain the sentence, and it was greater than
necessary under § 3553(a).       Maldonado objected on various grounds; but,
arguably, his objections were not based on any procedural grounds. See id. For
plain-error review, Maldonado must show, inter alia, a clear or obvious error
affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
      This claim fails under either the ordinary or plain-error standard of
review. Under the former, it was not clear error for the court to discount
Maldonado’s claim regarding why he illegally reentered the United States,
because there was no proof his father was killed by a gang in Mexico or that this
was Maldonado’s reason for entry. Under the latter, such questions of fact “can
never constitute plain error”. United States v. Vital, 68 F.3d 114, 119 (5th Cir.
1995) (internal quotations and citation omitted). Even assuming the district
court erred by failing to adequately explain the sentence, Maldonado has not
shown reversible error.
      Maldonado’s substantive-unreasonableness claim is reviewed for abuse of
discretion. Mondragon-Santiago, 564 F.3d at 360. Although post-Booker, the
Sentencing Guidelines are advisory only, the district court must still properly

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                                  No. 09-41258

calculate the guideline-sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 50-51 (2007). In that respect, its
application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). When, as
here, the district court imposes a sentence within a properly-calculated
guidelines range, we accord great deference to the sentence and apply a
rebuttable presumption of reasonableness. Gall, 552 U.S. at 51-52; United
States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      The district court did not abuse its discretion in weighing the § 3553(a)
factors. Rather, the record reflects the court heard and considered Maldonado’s
contentions in favor of a lesser sentence but implicitly found they did not
warrant a lesser sentence in the light of his criminal history, and given the lack
of evidence that he fled Mexico because he feared for his life after his father’s
alleged murder. Moreover, the district court expressly stated it considered the
§ 3553(a) factors and determined a within-Guidelines sentence satisfied those
factors.
      Based on the district court’s stated reasons, we are satisfied it considered
the assertions presented and had “a reasoned basis for exercising [its] own legal
decision making authority”. Rita v. United States, 551 U.S. 338, 356 (2007). The
district court considered the totality of the circumstances in the light of the
§ 3553(a) factors in imposing the sentence.         In any event, Maldonado’s
disagreement with his sentence does not suffice to show error in connection with
the sentence imposed. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66
(5th Cir.), cert. denied, 129 S. Ct. 624 (2008); United States v. Rodriguez, 523
F.3d 519, 526 (5th Cir. 2008).       Accordingly, he has failed to rebut the
presumption of reasonableness that attaches to his within-Guidelines sentence.
See United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).



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                                 No. 09-41258

      Maldonado contends the presumption of reasonableness should not apply
to sentences under Guideline § 2L1.2 because the Guideline is “penalogically
flawed”. Conceding this argument is foreclosed by our precedent, he raises it in
order to preserve it for possible further review. See Mondragon-Santiago, 564
F.3d at 366.
      AFFIRMED.




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