     Case: 12-20048       Document: 00512054214         Page: 1     Date Filed: 11/15/2012




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

                                                                            FILED
                                                                        November 15, 2012
                                     No. 12-20048
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SECUNDINO LUIS RODRIGUEZ, also known as Secundino Luis, also known
as Luis Rodriguez Secundino, also known as Secundino Rodriguez Luis, Jr., also
known as Secundino R. Luis,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4 : 4:11-CR-311-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Secundino Luis Rodriguez appeals the sentence
imposed following his guilty-plea conviction for illegally reentering the United
States after having been deported and convicted of an aggravated felony. He
first claims that the 37-month sentence was “procedurally unreasonable”
because the district court misconstrued the legal meaning of cultural


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20048     Document: 00512054214       Page: 2   Date Filed: 11/15/2012

                                   No. 12-20048

assimilation in rejecting his request for a downward departure under U.S.S.G.
§ 5K2.0.
      In general, we lack jurisdiction to review a district court’s refusal to grant
a downward departure. United States v. Hernandez, 457 F.3d 416, 424 (5th Cir.
2006). Although an exception to the jurisdictional bar exists when the district
court’s refusal to depart violates the law, “[a] refusal to depart downward is in
violation of law only if the district court’s refusal is based on the mistaken belief
that the court lacked the discretion to depart.” United States v. Garay, 235 F.3d
230, 232 (5th Cir. 2000). The district court’s comments at the instant sentencing
hearing clearly indicate that the court was aware that it had the authority to
depart, but that it chose not to do so. Accordingly, we lack jurisdiction to review
Rodriguez’s challenge to the district court’ s denial of the downward departure.
See Hernandez, 457 F.3d at 424.
      Rodriguez also contends that the district court substantively erred when
it rejected his arguments in support of a lower sentence, and that the court
misinterpreted the circumstances of his cultural assimilation because it imposed
the element of lawfulness to his failure to assimilate. When, as here, the
defendant fails to object to an error at sentencing, we review the district court’s
actions for plain error only. See Puckett v. United States, 556 U.S. 129, 134-35
(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (requiring
an objection to substantive unreasonableness of sentence in order to preserve
error). To show plain error, the appellant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett, 556 U.S. at 135.
If the appellant makes such a showing, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      The district court obviously considered the arguments in favor of
mitigation that were made by Rodriguez’s counsel. The court’s comments at the
sentencing hearing indicate that it balanced the circumstances in favor of

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                                 No. 12-20048

cultural assimilation against Rodriguez’s criminal history. The court also noted
that it had selected a sentence at the low end of the guidelines range based on
counsel’s arguments. As for the court’s viewing Rodriguez’s criminal history as
evidence of his failure to culturally assimilate, Rodriguez has not shown that
doing so constitutes clear or obvious error.
      AFFIRMED.




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