     Case: 09-50318     Document: 00511023017          Page: 1    Date Filed: 02/09/2010




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

                                                  FILED
                                                                          February 9, 2010
                                     No. 09-50318
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee

v.

PEDRO IVAN GARCIA-PALACIOS,

                                                   Defendant – Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-3022-1


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Pedro Ivan Garcia-Palacios (Garcia) appeals his within-guidelines
sentence imposed after his guilty plea conviction for reentering the United
States following removal. See 8 U.S.C. § 1326 (2006). He argues that the
district court committed error by failing to comply with Fed. R. Crim. P. 32; that
his sentence is not entitled to a presumption of reasonableness on appellate
review; that his sentence is substantively unreasonable; and that the district
court failed to provide sufficient reasons for the sentence imposed.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50318

      First, Garcia contends that the district court erred by failing to expressly
verify that he had read and discussed the presentence report with counsel as
required by Fed. R. Crim. P. 32(i)(1)(A). Because no objection was raised in the
district court, our court review is for plain error.           United States v.
Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001) (applying the plain error
standard of review after rejecting the defendant’s argument that failing to
confirm that the defendant read and discussed the PSR with defense counsel was
a structural defect, requiring automatic reversal). Garcia has not demonstrated
that he was prejudiced by the district court’s failure to strictly comply with Rule
32 and has thus failed to demonstrate plain error affecting his substantial
rights. See id.     Garcia next argues that his within-guidelines sentence should
not be afforded the presumption of reasonableness that ordinarily attaches to a
within-guidelines sentence on appellate review because United States
Sentencing Guideline § 2L1.2 is not empirically supported and double counted
his prior assault conviction. This argument is foreclosed by our precedent.
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert.
denied, 130 S. Ct. 192 (2009); United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009).
      Garcia argues that his sentence is substantively unreasonable because the
double counting of his prior assault conviction overstated his criminal history
and resulted in a sentence that was greater than necessary to accomplish the
goals of sentencing listed in 18 U.S.C. § 3553(a). As Garcia did not raise this
objection at sentencing, our review is for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259-60, 265 (5th Cir. 2009). Garcia’s argument does not
suffice to rebut the presumption of reasonableness that attaches to his
within-guidelines sentence. See Duarte, 569 F.3d at 529-31. Furthermore,
Garcia’s belief that the mitigating factors presented for the court’s consideration
at sentencing, including his benign motive for returning to this country, should
have been balanced differently likewise does not suffice to disturb the

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                                 No. 09-50318

presumption. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir.) (upholding the presumption of reasonableness of a within-guidelines
sentence where the appellant argued that a below-guidelines sentence was
justified due to his cultural assimilation, because the guidelines overstated the
seriousness of his offense, and due to his benign motive for illegally returning to
this country), cert. denied, 129 S. Ct. 624 (2008).
      Finally, Garcia contends that the district court failed to provide sufficient
reasons for its sentencing decision. As Garcia failed to make this objection at
sentencing, our review is for plain error. See Mondragon-Santiago, 564 F.3d at
361. There is nothing in the record to indicate that Garcia’s sentence would
have been different if the district court had provided more explanation for its
choice of sentence; therefore, Garcia has failed to demonstrate error affecting his
substantial rights. See id. at 364-65.
      Accordingly, the judgment of the district court is AFFIRMED.




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