     Case: 11-30777     Document: 00511886222         Page: 1     Date Filed: 06/13/2012




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

                                                                            FILED
                                                                           June 13, 2012
                                     No. 11-30777
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE ISRAEL LEYVA-DURAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:11-CR-3-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Israel Leyva-Duran pleaded guilty to illegal reentry and was
sentenced to 21 months in prison, at the top of the applicable advisory
Guidelines sentencing range. Leyva contends his sentence was unreasonable
and that he deserved a downward departure. He asserts the district court did
not: properly apply the 18 U.S.C. § 3553(a) factors; take into account his
cultural assimilation into the United States; and provide adequate reasons for
the sentence imposed. On this record, our court lacks jurisdiction to review the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30777    Document: 00511886222      Page: 2   Date Filed: 06/13/2012

                                  No. 11-30777

downward-departure denial, although Leyva may still challenge his sentence as
unreasonable. United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007),
abrogation on other grounds recognized by United States v. Delgado-Martinez,
564 F.3d 750, 752 (5th Cir. 2009).
      A challenge to the procedural and substantive reasonableness of a
sentence is reviewed in the light of the 18 U.S.C. § 3553(a) sentencing factors.
Gall v. United States, 552 U.S. 38, 49-50 (2007). If error has been preserved,
review is for abuse of discretion, id. at 51; if not, only for plain error, United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Sentences are
reviewed first for procedural error, then for substantive reasonableness. Gall,
552 U.S. at 51.
      The record does not support Leyva’s assertion that the district court failed
to consider the § 3553(a) sentencing factors; the court stated it had considered
them in determining Leyva’s sentence. And, although Leyva asserted he had
culturally assimilated to the United States, this is not a mandatory basis for a
departure, and the district court was not required to accord this fact dispositive
weight. E.g., United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.
2008).
      Finally, regarding the adequacy of district court’s explanation of sentence,
Leyva failed to raise this issue before the district court, and, therefore, review
is only for plain error. Because there is no indication his sentence would have
been different had the court provided greater explanation of its selected
sentence, Leyva has not shown that any alleged deficiency in the district court’s
explanation affected his substantial rights. E.g., Mondragon-Santiago, 564 F.3d
at 361.
      Although Leyva asked for a sentence below the advisory Guidelines
sentencing range, he did not specifically object to the sentence imposed.
Nevertheless, we need not determine which standard of review applies (i.e.,
abuse of discretion or plain error), as Leyva is unable to satisfy either standard.

                                        2
   Case: 11-30777    Document: 00511886222       Page: 3   Date Filed: 06/13/2012

                                   No. 11-30777

Being within the properly-calculated Guidelines range, Leyva’s sentence is
entitled to a presumption of reasonableness. E.g., United States v. Newson, 515
F.3d 374, 379 (5th Cir. 2008). “The presumption is rebutted only upon a showing
that the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The district court considered
Leyva’s request for a below-Guidelines sentence but determined that the record
(particularly Leyva’s numerous drug-and-alcohol-related convictions), in the
light of the § 3553(a) factors, called for a sentence at the top of that range. Leyva
has not shown the district court committed “a clear error of judgment in
balancing sentencing factors”. Id.
      AFFIRMED.




                                         3
