     Case: 12-40785       Document: 00512275637         Page: 1     Date Filed: 06/17/2013




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

                                                                            FILED
                                                                           June 17, 2013
                                     No. 12-40785
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DARYL A. BARRALAGA SANDERS, true name Daryl Alberto Barralaga-
Sandres,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-159-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Daryl Barralaga Sanders was convicted of one charge of illegal reentry into
the United States and sentenced to serve 63 months in prison and two years on
supervised release. In the sole issue raised in this appeal, Barralaga Sanders
argues that the district court plainly erred by presuming that his guidelines
sentencing range was reasonable and by relying upon this presumption to deny




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40785     Document: 00512275637       Page: 2   Date Filed: 06/17/2013

                                   No. 12-40785

his request for a sentence below the guidelines range based on cultural
assimilation.
      As he acknowledges, we consider this claim under the plain error standard
because it was not presented to the district court. See United States v. King, 541
F.3d 1143, 1144 (5th Cir. 2008). To meet this standard, Barralaga Sanders must
show an error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). Even if this showing is made,
we will exercise our discretion to correct the error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
      Our review of the record shows that the district court acted properly by
acknowledging that the Sentencing Guidelines were advisory and by considering
the factors given in 18 U.S.C. § 3553 before imposing the sentence it found
appropriate under the facts of this particular case. See Gall v. United States,
552 U.S. 38, 50 (2007). The district court’s remarks, read in context, do not
demonstrate that it required Barralaga Sanders to overcome a presumption that
the guidelines range was reasonable or refused to grant the requested variance
absent a showing of extraordinary circumstances. See United States v. Diaz, 344
F. App’x 36, 41 (5th Cir. 2009) (per curiam). Because Barralaga Sanders has not
shown plain error concerning his sentence, the judgment of the district court is
AFFIRMED.




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