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

                                                                            FILED
                                                                         October 31, 2008

                                     No. 07-40105                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

PEDRO JAIMES-AGUIRRE

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:06-CR-227-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       The Supreme Court vacated our judgment in United States v. Jaimes-
Aguirre, 258 F. App’x 662 (5th Cir. 2008), and remanded this matter for further
consideration in the light of Gall v. United States, 128 S. Ct. 586 (2007). Jaimes-
Aguirre v. United States, 128 S. Ct. 2934 (2008).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-40105

      In our first decision, we rejected Pedro Jaimes-Aguirre’s assertion that his
sentence was unreasonable because, according to Jaimes, our post-Booker
decisions had effectively reinstated the mandatory guidelines regime that Booker
condemned.     We noted, as Jaimes had conceded, that this assertion was
foreclosed by Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Jaimes-
Aguirre, 258 F. App’x at 663.
      In Gall, the Court established a two-part framework for appellate review
of federal sentencing. Gall, 128 S. Ct. at 597. First, the appellate court must
ensure the district court did not commit procedural error, such as “failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors
. . . or failing to adequately explain the chosen sentence”. Id. Second, the
appellate court must assess the substantive reasonableness of the sentence
imposed. The standard of review in both instances is for abuse-of-discretion. Id.
      Following remand, we required supplemental briefs. Jaimes claims the
district court committed procedural error for three reasons: (1) it treated the
Guidelines as mandatory; (2) it failed to consider the § 3553(a) factors; and (3)
it failed to adequately explain the chosen sentence. Because Jaimes did not
raise the procedural-reasonableness issue in district court, our review is only for
plain error. E.g., United States v. Salazar-Garcia, 2008 WL 4345108 at *1 (5th
Cir. 2008). Under the plain-error standard, an appellate court may not correct
an error unless, inter alia, (1) there is error, (2) that is plain, and (3) that affects
substantial rights. E.g., United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005).
      The district court did not commit plain error in imposing the sentence, as
Jaimes’ substantial rights were not affected. The standard for determining
whether an error affects substantial rights requires a showing that the error
“must have affected the outcome of the district court proceedings”. United States

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v. Olano, 507 U.S. 725, 734 (1993). The defendant, not the Government, bears
the burden of persuasion with respect to prejudice, id., and the defendant’s
burden of establishing prejudice and entitlement to relief for plain error “should
not be too easy”. United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004).
      Jaimes does not meet his heavy burden of persuasion. The district court
properly calculated the advisory guidelines sentencing range, considered it
applicable, and imposed a sentence at the bottom of that range. Jaimes has
failed to show that any error would have affected the outcome of the district
court proceedings.
      Jaimes next contends the sentence was substantively unreasonable as it
was excessive under the circumstances of this case. Jaimes asserts: because he
specifically requested a below-guidelines sentence in district court, he preserved
his substantive reasonableness claim. This contention is incorrect. In United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007), our court concluded: “[A]
defendant’s failure to object at sentencing to the reasonableness of his sentence
triggers plain error review”. As Jaimes merely requested a below-guidelines
sentence, but did not object to the reasonableness of the sentence imposed, plain
error review applies.
      In any event, as noted in our first opinion, the Supreme Court in Rita
determined that a court of appeals may apply a presumption of reasonableness
to sentences that fall within the Guidelines range. Rita, 127 S. Ct. at 2462. Gall
did not change this determination, holding, “[i]f the sentence is within the
Guidelines range, the appellate court may, but is not required to, apply a
presumption of reasonableness”. Gall, 128 S. Ct. at 597. Jaimes is unable to
rebut the presumption of reasonableness we apply in this instance. The district
court heard and considered Jaimes’ contentions as to why he thought his
sentence should be mitigated, concluded the guidelines sentencing range was



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applicable, and chose to sentence Jaimes at the bottom of the range. There was
no error.
      In sum, on remand, Jaimes has not demonstrated that his sentence was
either procedurally or substantively unreasonable in the light of Gall.
      AFFIRMED.




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