     Case: 12-50435       Document: 00512304832         Page: 1     Date Filed: 07/11/2013




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

                                                                            FILED
                                                                            July 11, 2013
                                     No. 12-50435
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARTURO GARCIA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2651-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Arturo Garcia appeals the 235-month below-guidelines sentence imposed
following his guilty plea conviction for possession with intent to distribute five
kilograms or more of cocaine. He also challenges the district court’s imposition
of a 10-year period of ineligibility for federal benefits, arguing that his offense
was not a distribution offense for purposes of 21 U.S.C. § 862.
       Garcia contends that his 235-month sentence is unreasonable and greater
than necessary as measured by the factors set forth in 18 U.S.C. § 3553(a). He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50435

asserts that the career offender Sentencing Guideline, U.S.S.G. 4B1.1, conflicts
with § 3553(a)(1), which requires the sentencing court to consider the particular
nature and circumstances of the offense and the defendant’s personal history
and characteristics and that his guidelines range overstated the seriousness of
his offense.
      The record reflects that the district court made an individualized
determination at sentencing that a 235-month sentence was appropriate based
on the facts presented and that the court considered Garcia’s arguments for a
lesser sentence, as well as the § 3553(a) factors. See Gall v. United States, 552
U.S. 38, 49-51 (2007). Garcia fails to rebut the presumption of reasonableness
accorded his below-guidelines sentence. See United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Thus, he has not shown error, plain or otherwise, and
his “disagreement with the propriety of the sentence imposed does not suffice to
rebut the presumption of reasonableness that attaches to [his] sentence.” United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      Because Garcia did not object to the 10-year denial of federal benefits in
the district court, review is limited to plain error. See United States v. Silva-de
Hoyos, 702 F.3d 843, 848 (5th Cir. 2012). To show plain error, Garcia must
demonstrate that (1) there was an error, (2) it was clear or obvious, and (3) it
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that 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. See id.
      Because Garcia’s offense of possession of cocaine with intent to distribute
was not an offense consisting of the distribution of controlled substances under
§ 862(a), the district court erred in imposing the 10-year ineligibility period, that
error was plain, and it affected Garcia’s substantial rights. See Silva-de Hoyos,
702 F.3d at 849-50. Garcia, however, has not identified any federal benefit to
which he is eligible or might be eligible to receive during the 10-year ineligibility

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                                  No. 12-50435

period imposed by the district court. See id. at 850. Because the district court’s
error did not seriously affect the fairness, integrity, or public reputation of
judicial proceedings, the district court’s judgment is affirmed. See id.
      AFFIRMED.




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