     Case: 12-41061       Document: 00512314813         Page: 1     Date Filed: 07/19/2013




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

                                                                            FILED
                                                                            July 19, 2013
                                     No. 12-41061
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDUARDO ROSAS-VILLARREAL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:12-CR-808-1


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Eduardo Rosas-Villarreal was convicted of one count of being found in the
United States after previous deportation and was sentenced to serve 46 months
in prison. Rosas-Villarreal argues that the district court plainly erred by
presuming that his guidelines sentencing range was reasonable and by relying
upon this presumption to deny his request for a sentence below the guidelines
range based on cultural assimilation.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41061     Document: 00512314813       Page: 2   Date Filed: 07/19/2013

                                   No. 12-41061

      We consider Rosas-Villarreal’s 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, Rosas-Villarreal 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).
      The Supreme Court has explained that “the sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Rita v. United States, 551 U.S. 338, 351 (2007). Rather, a district court
must impose “a sentence sufficient, but not greater than necessary, to comply
with the purposes” of 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a). The guidelines
range serves as a “starting point” and “initial benchmark” prior to consideration
of the § 3553(a) factors, and a sentencing court cannot require exceptional
circumstances to be present to justify imposing a sentence that is outside of the
guidelines range. Gall v. United States, 552 U.S. 38, 49-50 (2007).
      In this case, even assuming arguendo that the district court’s language
indicates an erroneous application of this standard, we do not find plain error.
The district court twice referred to the guidelines range as “advisory.” In
denying Rosas-Villarreal’s argument for a cultural assimilation-based downward
variance, the district court cited the defendant’s “extensive criminal history”; the
fact that he was “at one point . . . given legal status” in the United States before
he “lost that all on [his] own”; and his fluency in Spanish and English increasing
his ability to obtain employment in Mexico. The district court’s conclusion that
a cultural assimilation variance was not “justified or warranted in this case”
was, on plain error review, based on a sufficiently individualized and fact-
specific assessment, see Gall, 552 U.S. at 50, and Rosas-Villarreal has not shown
a reasonable probability that he would have received a lesser sentence in the

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                                 No. 12-41061

absence of any presumption of reasonableness. See United States v. Davis, 602
F.3d 643, 648–49 (5th Cir. 2010). The judgment of the district court is therefore
AFFIRMED.




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