     Case: 11-10088     Document: 00511715174         Page: 1     Date Filed: 01/05/2012




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

                                                                            FILED
                                                                          January 5, 2012
                                     No. 11-10088
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

REYMUNDO MENDOZA-TREJO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:08-CR-63-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Reymundo Mendoza-Trejo was previously convicted of illegal reentry and
was released on a two-year term of supervision on March 8, 2008. In September
2008, Mendoza-Trejo’s supervised release was revoked based on a finding that
he had again illegally reentered the country, and the district court sentenced
him to 18 months of imprisonment. Almost 25 months after the revocation
sentence was imposed, Mendoza-Trejo appealed.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10088

      Mendoza-Trejo argues that the district court erred by not considering the
18 U.S.C. § 3553(a) factors when it imposed his sentence on revocation. The
Government has moved for summary affirmance.
      Mendoza-Trejo did not raise any claims of error when he was before the
district court for sentencing. Thus, we review his claim that the district court
failed to consider the factors set forth in 18 U.S.C. § 3553(a) during sentencing
for plain error. Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). To show
plain error, he must show a forfeited error that is clear or obvious and that
affects his substantial rights. Id. at 1429. If he makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Even if Trejo could establish that the district court committed obvious
error by failing to articulate the reasons for the sentence it imposed, we find that
the potential error could not have affected Trejo’s substantial rights. “In the
sentencing context, we have held that an appellant can show an impact on
substantial rights—and therefore a basis for reversal on plain error
review—where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence.”
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010) (citation omitted).
      However, the district court’s revocation sentence fell within the applicable
Guidelines range, that is 12 to 18 months. Accordingly, “we ‘infer that the
[district court] has considered all the factors for a fair sentence set forth in the
Guidelines in light of the sentencing considerations set out in § 3553(a).’” United
States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009) (citation
omitted); see United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Nor did
Trejo present legitimate reasons under § 3553(a) for a downward departure from
the Guidelines, which would have required more explanation from the district
court. Mondragon-Santiago, 564 F.3d at 362. Thus, because we must infer that
the district court considered the applicable sentencing factors, Trejo cannot show

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                                 No. 11-10088

a reasonable probability “that an explanation would have changed his sentence.”
Id. at 365. In short, “we are bound by our precedent to hold that the district
court’s failure to adequately explain the sentence did not affect his substantial
rights. Thus, we find no reversible plain error.” Id.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.




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