     Case: 11-41212     Document: 00511960530         Page: 1     Date Filed: 08/17/2012




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

                                                                            FILED
                                                                          August 17, 2012
                                     No. 11-41212
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PATRICK ORR,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:10-CR-91-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
        Patrick Jason Orr was convicted after a jury trial of one count of bank
robbery, and one count of possession of a firearm during the commission of a
violent crime. The district court imposed a within-guidelines sentence of 188
months of imprisonment on the bank robbery count, the statutory minimum
sentence of 120 months of imprisonment on the possession-of-a-firearm count,
and a five-year term of supervised release for each offense. The district court
ordered that the prison terms be served consecutively and that the supervised

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41212

release terms be served concurrently. The district court further ordered that the
instant terms of imprisonment be served consecutively to Orr’s undischarged
sentence for his prior conviction in the United States District Court for the
Southern District of Alabama for being a felon in possession of a firearm and
that his instant term of supervised release be served concurrently with the term
of supervised release imposed for his prior conviction.
      Orr argues that the district court erred in its decision to order his instant
sentence to run consecutively to the undischarged sentence. He asserts that the
district court failed to consider the methodology set forth in U.S.S.G. § 5G1.3 in
determining whether the instant sentence should have been ordered to be served
concurrently or consecutively with the undischarged sentence.
      We review a sentence, including its consecutive nature, for reasonableness
in light of the Guidelines and the factors set out in 18 U.S.C. § 3553(a). Gall v.
United States, 552 U.S. 38, 46, 51 (2007); United States v. Candia, 454 F.3d 468,
472 (5th Cir. 2006). However, if a defendant has failed to preserve a claim for
relief, review is for plain error only. United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). While it is not clear whether Orr’s claim should
be reviewed for plain error or for reasonableness, we need not determine which
standard applies because Orr has not satisfied either standard.
      The record belies Orr’s assertions that the district court did not consider
the pertinent sentencing factors. The presentence report (PSR) and counsels’
arguments at sentencing alerted the district court to the relevant factors and,
therefore, the district court is presumed to have considered them. See United
States v. Izaguirre-Losoya, 219 F.3d 437, 440 & n.13 (5th Cir. 2011). The court
expressly noted that it had fully considered the Sentencing Guidelines and the
§ 3553(a) factors before pronouncing the sentence. See § 5G1.3(c), p.s., comment.
(n.3); § 3553(a)(2). Thus, the district court reviewed the relevant factors in
deciding to order Orr’s sentence to be served consecutively to his undischarged
sentence. See Izaguirre-Losoya, 219 F.3d at 440.

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                                  No. 11-41212

      Orr also argues that his sentence is substantively unreasonable because
it is greater than necessary to accomplish the goals of sentencing. He suggests
that the consecutive nature of the prison terms imposed in this case rendered his
sentence substantively unreasonable. Orr asserts that the district court should
have considered reducing the sentence imposed for his bank robbery offense to
account for the consecutive mandatory minimum sentence that the district court
was required to impose for the possession-of-a-firearm offense. Because Orr did
not object in the district court to the substantive reasonableness of his sentence,
we review for plain error. Mondragon-Santiago, 564 F.3d at 361.
      When selecting a defendant’s sentence, the district court must make an
individualized assessment based on the facts presented. Gall, 552 U.S. at 50.
Here, the record shows that the district court made the proper individualized
assessment. The court adopted the PSR and considered the parties’ arguments
regarding the proper sentence, particularly whether the instant sentence should
be served concurrently or consecutively with Orr’s undischarged sentence. The
district court also considered the § 3553(a) factors and detailed how the sentence
imposed satisfied those factors. Although Orr suggests that the district court
should have reduced the sentence on his bank robbery count to account for the
consecutive statutory minimum sentence, the sentence imposed for Orr’s bank
robbery offense was within the guidelines range, and Orr has not proffered an
adequate argument for why this sentence was unreasonable. See Candia, 454
F.3d at 473. Orr’s disagreement with his sentence does not suffice to rebut the
presumption of reasonableness that attaches to it. See United States v. Ruiz, 621
F.3d 390, 398 (5th Cir. 2010).
      Accordingly, the district court’s judgment is AFFIRMED.




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