     Case: 12-40074       Document: 00512175963         Page: 1     Date Filed: 03/15/2013




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

                                                                            FILED
                                                                          March 15, 2013
                                     No. 12-40074
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MAURICIO MARTINEZ-AVILA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-896-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Mauricio Martinez-Avila pled guilty to illegal reentry following
deportation after conviction of an aggravated felony in violation of 8 U.S.C. §
1326(a)-(b) and was sentenced to a within-Guidelines sentence of 37 months in
prison.    Martinez-Avila argues that his guilty plea is invalid because the
magistrate judge violated Rule 11(b)(1)(M) of the Federal Rules of Criminal
Procedure by incorrectly reciting an eight-level increase during his
rearraignment. He also argues that his sentence is substantively 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40074      Document: 00512175963       Page: 2    Date Filed: 03/15/2013

                                    No. 12-40074

because the district court placed undue weight on his criminal history without
accounting for his cultural and family ties to the United States.
      Martinez-Avila did not present the foregoing arguments in the district
court; therefore, our review is for plain error. United States v. Vonn, 535 U.S.
55, 58-59 (2002). To show plain error, Martinez-Avila must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court
has the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Martinez-Avila’s argument regarding the validity of his guilty plea is
unavailing. To establish that his substantial rights were affected, Martinez-
Avila must show a “reasonable probability that, but for the error, he would not
have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004). When considering whether he has made this showing, we may consider
the entire record. See id. The record as a whole reflects that Martinez-Avila was
aware that he faced a statutory maximum term of 20 years in prison and that
the district court was obligated to calculate the advisory Guidelines range and
to consider that range, possible departures under the Sentencing Guidelines, and
other sentencing factors under 18 U.S.C. § 3553(a). Martinez-Avila was also
aware of the magistrate judge’s misstatement regarding the eight-level increase
in his offense level when Martinez-Avila received the presentence investigation
report, which reflected a twelve-level increase. He neither objected to the
twelve-level increase nor complained about the magistrate judge’s misstatement.
In light of the foregoing, Martinez-Avila has failed to show on plain error review
that but for the magistrate judge’s misstatement, he would not have pled guilty.
See Dominguez Benitez, 542 U.S. at 76, 83; United States v. Rivera, 898 F.2d 442,
447 (5th Cir. 1990).
      Martinez-Avila’s argument regarding the substantive reasonableness of
his sentence also fails because it amounts to nothing more than his

                                          2
    Case: 12-40074    Document: 00512175963    Page: 3   Date Filed: 03/15/2013

                                No. 12-40074

disagreement with the court’s weighing of the sentencing factors and the
appropriateness of his within-Guidelines sentence. Martinez-Avila has not
rebutted   the   presumption   of   reasonableness   that   attaches    to   his
within-Guidelines sentence and has not shown error, much less plain error. See
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Alonzo, 435 F.3d 551,
554-55 (5th Cir. 2006).
      AFFIRMED.




                                      3
