     Case: 12-41027       Document: 00512226803         Page: 1     Date Filed: 05/01/2013




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

                                                                            FILED
                                                                            May 1, 2013
                                     No. 12-41027
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALFONSO GARCIA-VELA, also known as Juan Garcia-Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-335-1


Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Mexican national Juan Garcia-Vela (Garcia) appeals the 96-month
sentence he received following his guilty-plea conviction for being illegally
present in the United States after having been previously deported, in violation
of 8 U.S.C. § 1326. He argues, for the first time on appeal, that his sentence is
procedurally unreasonable because the district court presumed that a sentence
within the applicable guidelines range was reasonable.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41027     Document: 00512226803       Page: 2   Date Filed: 05/01/2013

                                   No. 12-41027

      Generally, we review the sentence imposed for reasonableness in light of
the factors set forth in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005). In reviewing a sentence for reasonableness, we first
determine whether the district court’s sentencing decision is procedurally sound
and then determine whether the sentence is substantively reasonable. Gall v.
United States, 552 U.S. 38, 49-51 (2007). As Garcia did not preserve his
presumption-of-reasonableness argument in the district court, review of the
district court’s actions is for plain error only. See United States v. King, 541 F.3d
1143, 1144 (5th Cir. 2008).
      The Supreme Court has explained that “the sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Rita v. United States, 551 U.S. 338, 351 (2007). A sentencing court
cannot require that exceptional circumstances be present to justify imposing a
sentence that is outside of the guidelines range. Gall, 552 U.S. at 47. Contrary
to Garcia’s argument, nothing in the district court’s remarks shows that he was
required to overcome a presumption that the guidelines range was reasonable
or required to prove “extraordinary circumstances” before the district court
would impose a non-guidelines sentence. Garcia has not established that the
district court applied a presumption of reasonableness to his advisory sentencing
guidelines range. See King, 541 F.3d at 1145. Therefore, Garcia has not
established that the district court erred, much less plainly erred.
      To the extent that Garcia challenges the district court’s denial of his
request for a below-guidelines sentence, the argument fails. See Gall, 552 U.S.
at 51. His within-guidelines sentence is presumptively reasonable, and his
assertions concerning his benign motive for reentry and cultural assimilation do
not rebut that presumption. See Rita, 551 U.S. at 347; United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      The district court’s judgment is AFFIRMED.



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