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

                                                 FILED
                                                                        September 14, 2009
                                     No. 09-40136
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CELSO VIRAMONTES-GALAVIS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 1:08-CR-870-ALL


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Celso Viramontes-Galavis appeals the 77-month sentence imposed
following his conviction on a guilty plea to illegal reentry after having been
convicted of an aggravated felony. See 8 U.S.C. § 1326 (a), (b). For the first time
on appeal, Viramontes contends his sentence, which is at the bottom of the
applicable advisory guidelines sentencing range, is procedurally unreasonable



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40136
under Gall v. United States, 128 S. Ct. 586, 594 (2007), and Rita v. United
States, 551 U.S. 338, 356 (2007), because the district court did not give reasons
for rejecting his request for a below-guidelines sentence, address his nonfrivolous
arguments for a lower sentence, or explain its reasons for the sentence it
imposed.     Viramontes further contends his sentence is substantively
unreasonable because it is much longer than any term he has previously served
and because a lesser sentence would fulfill the sentencing goals of 18 U.S.C.
§ 3553(a).
      Because these contentions were not presented in district court, our review
is only for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
361-65 (5th Cir. 2009), petition for cert. filed (24 June 2009) (No. 08-11099).
Reversible plain error exists where a clear or obvious error affects the
defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Even then, we have discretion whether to
correct such an error and generally will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d
at 332.
      Viramontes contends: neither plain error review nor the presumption of
reasonableness should apply because Guideline § 2L1.2 (providing offense levels
for unlawfully entering or remaining in the United States) is not empirically
based; he does, however, acknowledge that these issues are foreclosed, and raises
them merely to preserve them for further review.           Viramontes’ claim of
procedural error fails because the record shows the district court based his
sentence on the factual findings and guidelines calculation in the presentence
investigation report. See United States v. Hernandez, 457 F.3d 416, 424 (5th Cir.
2006).    Further, Viramontes has not shown his sentence would have been
different had the district court provided a more thorough explanation for its
choice of sentence. See Mondragon-Santiago, 564 F.3d at 364-65.

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                                 No. 09-40136
      As to the substantive reasonableness of Viramontes’ sentence:          “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable”. United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir. 2008) (citing United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006)); see also Rita, 551 U.S. at 352-56 (holding that an appellate court may
presume a within-guidelines sentence to be reasonable). Viramontes has not
rebutted this presumption. See Mondragon-Santiago, 564 F.3d at 365-67.
      AFFIRMED.




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