     Case: 11-40857     Document: 00511786906         Page: 1     Date Filed: 03/13/2012




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

                                                                            FILED
                                                                          March 13, 2012
                                     No. 11-40857
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERNESTO S. GARCIA-SANDOVAL, also known as Ernesto Garcia-Sandoval,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-144-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Ernesto S. Garcia-Sandoval appeals his sentence following his guilty plea
conviction for illegal reentry of a deported alien. The district court sentenced
him within his advisory guidelines range to 24 months of imprisonment and
three years of supervised release. Garcia-Sandoval challenges the procedural
and substantive reasonableness of his sentence.
        After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). We first

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40857

examine whether the district court committed any significant procedural error.
Id. at 51. If the district court’s decision is procedurally sound, we will then
consider the substantive reasonableness of the sentence. Id.
      Garcia-Sandoval contends that the district court erred procedurally by
failing to adequately explain its sentence. As conceded by him, this issue is
subject to plain error review because he did not object in the district court on this
ground. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). “The district court must adequately explain the sentence ‘to allow for
meaningful appellate review and to promote the perception of fair sentencing.’”
Id. at 360 (quoting Gall, 552 U.S. at 50). Before pronouncing the sentence, the
district court acknowledged Garcia-Sandoval’s arguments for a lesser sentence
but noted that he had an extensive criminal history and had been fortunate not
to have been removed from the United States on numerous additional occasions
given his prior convictions.
      “[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.” Rita v. United
States, 551 U.S. 338, 356 (2007). The judge need only “set forth enough to satisfy
the appellate court that [she] has considered the parties’ arguments and has a
reasoned basis for exercising [her] own legal decision making authority.” Id.
The district court provided a reasoned basis for the sentence, and its statements
reflect adequate consideration of Garcia-Sandoval’s arguments for a below-
guidelines sentence. The court’s explanation of the sentence was adequate, and
Garcia-Sandoval has not demonstrated error, plain or otherwise, with respect to
this issue. See Rita, 551 U.S. at 356-58.
      Regarding substantive reasonableness, Garcia-Sandoval argues that his
sentence was greater than necessary to satisfy the sentencing goals under 18
U.S.C. § 3553(a). He contends that his past convictions were very old, very
minor, or both, and that most, if not all, of them involved alcohol abuse
warranting treatment rather than incarceration. He asserts that he had lived

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                                  No. 11-40857

in the United States for more than 25 years, he had been consistently and
gainfully employed as a pipefitter, his family all lived in the United States, and
he had no ties to Mexico. According to Garcia-Sandoval, his incarceration
extends his unlawful presence in the United States at taxpayer expense while
dividing his family.
      Because he did not object to the substantive reasonableness of his sentence
in the district court, plain error review applies. See United States v. Ruiz, 621
F.3d 390, 398 (5th Cir. 2010). The district court considered and was not
persuaded by Garcia-Sandoval’s arguments for a lesser sentence. The court’s
consideration of his criminal history in imposing the sentence was permissible.
See United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008). “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Garcia-Sandoval has not
shown sufficient reason to disturb the presumption of reasonableness applicable
to his within-guidelines sentence. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008). He has not shown error, plain or otherwise, with
respect to the substantive reasonableness of his sentence.
      AFFIRMED.




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