     Case: 15-50154      Document: 00513448567         Page: 1    Date Filed: 04/01/2016




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

                                    No. 15-50154
                                                                                       Fifth Circuit

                                                                                     FILED
                                  Summary Calendar                                April 1, 2016
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                 Plaintiff-Appellee

v.

JOSE MARTIN ZAVALA-ACOSTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-476


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Martin Zavala-Acosta pleaded guilty to one count of illegal reentry
and received a within-guidelines sentence of 57 months of imprisonment and
a three-year term of supervised release. On appeal, Zavala-Acosta argues that:
(1) the district court committed procedural error when it failed to articulate
why it denied his request for a downward departure under U.S. Sentencing
Guidelines § 5H1.4 based on his ankle injury; and (2) his sentence was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50154

substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals under 18 U.S.C. § 3553(a).
       We engage in a bifurcated review of the sentence imposed by the district
court, first considering whether the district court committed a “significant
procedural error,” such as “failing to adequately explain the chosen sentence”
and then reviewing the substantive reasonableness of the sentence for an
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Zavala-
Acosta concedes that our review is for plain error because he failed to object
below. 1 See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To
show plain error, Zavala-Acosta must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. See id.
       Zavala-Acosta argues that the district court procedurally erred by not
conducting additional fact-finding and not explaining its rationale in denying
his request for a downward departure under § 5H1.4. We have jurisdiction to
review a district court’s refusal to depart downward “only if the district court’s
refusal is based on the mistaken belief that the court lacked discretion to
depart.” United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000). “The
jurisdictional bar applies even where the district court responds to a request
for downward departure with a ‘summary denial without explanation’ or with
an implicit denial by imposing a Guideline sentence.”                    United States v.
Hernandez, 457 F.3d 416, 424 (5th Cir. 2006) (citation omitted). Zavala-Acosta
does not allege, and the record does not reflect, that the district court



       1Because we hold that the district court did not err, let alone plainly err, our result
would be no different if we reviewed for abuse of discretion rather than plain error.


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                                No. 15-50154

misunderstood the scope of its discretion in considering Zavala-Acosta’s motion
for a downward departure under § 5H1.4. Accordingly, we lack jurisdiction to
hear Zavala-Acosta’s claim of procedural error.
      As to Zavala-Acosta’s claim that his sentence was substantively
unreasonable because it failed to take his ankle injury into account, a within-
guidelines sentence is presumptively reasonable.            See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Zavala-Acosta’s ankle injury was
discussed at sentencing and the district court determined that a sentence at
the bottom of Zavala-Acosta’s guidelines range was appropriate. There was no
indication that the injury rose to the level warranting a below-guidelines
sentence. See U.S.S.G. § 5H1.4; Rodriguez, 523 F.3d at 526. Zavala-Acosta is
essentially asking us to reweigh the § 3553(a) factors, but “the sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.” United States v. Campos-
Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Zavala-Acosta has not shown
that his sentence was substantively unreasonable. See id.; Rodriguez, 523 F.3d
at 525-26.
      AFFIRMED.




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