     Case: 12-40423       Document: 00512168437         Page: 1     Date Filed: 03/08/2013




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

                                                                            FILED
                                                                           March 8, 2013
                                     No. 12-40423
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GALDINO SIGALA GARCIA, also known as Pelon,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-123-4


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Galdino Sigala Garcia appeals his conviction and 135-month term of
imprisonment imposed following his guilty plea conviction of conspiracy to
possess with intent to distribute and to distribute 5 kilograms or more of cocaine.
Sigala Garcia argues that there was not a sufficient factual basis for his guilty
plea or to support the quantity of cocaine for which he was held accountable at
sentencing.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40423

      Because Sigala Garcia did not object in the district court to the sufficiency
of the factual basis for his plea, review is for plain error. See United States v.
Oliver, 630 F.3d 397, 415 (5th Cir. 2011). In determining whether there has
been plain error, the court may consider the entire record in assessing whether
there is an adequate factual basis for a guilty plea, including the presentence
report (PSR). Id. at 412; United States v. Hildenbrand, 527 F.3d 466, 475 (5th
Cir. 2008). The district court was required to determine that as a matter of law,
the record reflected Sigala Garcia’s participation in the drug-trafficking
conspiracy that involved as a whole more than 5 kilograms of cocaine. See
United States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003); United States v.
Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc).
      During the rearraignment, the district court ascertained Sigala Garcia’s
acknowledgment that he entered into an agreement with co-conspirator Victor
Lopez to assist him in obtaining 10 kilograms of cocaine for distribution; that he
obtained a cocaine source; that he and the other men developed a plan to have
the cocaine delivered to the buyer, who was in fact the undercover agent; and
that Sigala Garcia was to receive $1500 for his part in the criminal activity. His
admissions were supported by the testimony of the undercover agent and the
findings in the PSR. A review of the record as a whole shows that there was
sufficient factual evidence presented to support the guilty plea and, thus, Sigala
Garcia failed to show error, plain or otherwise, with respect to the validity of his
guilty plea. Citing to the reasons he raised in the district court in seeking a
downward variance from the sentencing guideline range, Sigala Garcia argues
that his 135-month sentence of imprisonment is greater than necessary to
achieve the purposes of 18 U.S.C. § 3553(a) and is thus unreasonable. Sigala
Garcia contends that the district court failed to consider the mitigating factor
that his role in the offense had little relationship to the cocaine recovered on
June 5, 2010. He also argues that the district court should have avoided



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                                  No. 12-40423

unwarranted disparities at sentencing, pointing out that his codefendant,
Cardona-Palacios, received a 35-month sentence of imprisonment.
      Although Sigala Garcia failed to object to the reasonableness of his
sentence below, his reliance on the same arguments that he presented to the
district court to support his request for a downward variance allows the court to
find that he has preserved the reasonableness issue for appeal and to apply the
abuse of discretion standard of review. See United States v. Gomez-Herrera, 523
F.3d 554, 565 n.6 (5th Cir. 2008). A sentence imposed within a properly
calculated guidelines range is accorded a presumption of reasonableness and is
rebutted only if the district court fails to consider a significant factor, gives
weight to an irrelevant factor, or clearly errs in balancing the sentencing factors.
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Sigala Garcia’s argument that there was no evidence linking him to the
drug sale was rebutted by his own admissions, the information in the PSR, and
the testimony of the undercover agent at the sentencing hearing. Insofar as he
argues that there was an unwarranted disparity in sentencing, he did not rebut
the evidence that his codefendants immediately cooperated with the authorities
and received the benefit of the safety valve provision while he pleaded guilty on
the day his trial was scheduled and was precluded from the application of the
safety valve based on his prior convictions. Sigala Garcia has not rebutted the
presumption of reasonableness afforded his guideline sentence. See Cooks, 589
F.3d at 186. The district court did not abuse its discretion in imposing the
guidelines sentence.
      Sigala Garcia’s conviction and sentence are AFFIRMED.




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