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

                                                 FILED
                                                                           March 31, 2009
                                     No. 08-50523
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

JOSE ANGEL ROMERO-FACIO,
Also Known as Jose Romero-Facio,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 3:07-CR-3236-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Jose Romero-Facio appeals his guilty plea conviction of importing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-50523

marihuana, possessing with intent to distribute marihuana, and using a minor
in a drug operation, for which he was sentenced to 41 months of imprisonment.
He contends that the district court did not provide an adequate explanation for
his sentence and that his within-guideline sentence was unreasonable.
      Romero-Facio did not object to the district court’s explanation of the sen-
tence. We review his contention for plain error. See United States v. Lopez-Vel-
asquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). To pre-
serve the argument for further review, Romero-Facio argues that the plain error
standard should not apply; he concedes the argument is foreclosed by Lopez-
Velasquez.
      The district court listened to Romero-Facio’s arguments for a variance
from the guideline sentencing range, rejected them, and stated that a within-
range sentence was appropriate. In light of the facts of Romero-Facio’s case and
the arguments he presented for a variance, the court provided a sufficient ex-
planation. See Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007).
      A discretionary sentence imposed within a properly calculated guidelines
range is entitled to a rebuttable presumption of reasonableness. United States
v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita, 127 S. Ct. at 2462 . The
41-month sentence is within the 41-51-month guideline range and is presump-
tively reasonable. See Alonzo, 435 F.3d at 554. Romero-Facio has not shown
that the sentence was unreasonable under the abuse-of-discretion standard. See
Gall v. United States, 128 S. Ct. 586, 597 (2007).
      First, Romero-Facio’s economic situation and his health, while unfortu-
nate, do not make him stand out from a garden-variety drug mule. Second, he
has not shown that he would not have been charged with using a minor in a drug
operation had he not told the authorities that Roberto Ramirez directed him to
use his son to facilitate his crossing. Third, Romero-Facio has not demonstrated
any logical connection between his sentence and his potential to make a living
after he completes his prison term and is removed to Mexico. Fourth, Romero-

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                                  No. 08-50523

Facio’s criminal history score of 3 does not overstate the seriousness of his crim-
inal history of one assault conviction and two convictions of driving while in-
toxicated to an extent that a within-range sentence was an abuse of discretion.
Cf. U.S.S.G. § 4A1.3(b) (addressing downward departures). Fifth, even if Ro-
mero-Facio is correct that nothing in the record suggests that a 41-month term
is necessary for correctional treatment or medical care, he does not indicate how
this shows that his sentence reflects a clear error of judgment. See United States
v. Nolen, 472 F.3d 362, 376 n.29 (5th Cir. 2006).
      AFFIRMED.




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