     Case: 17-40339      Document: 00514387095         Page: 1    Date Filed: 03/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 17-40339                             FILED
                                  Summary Calendar                     March 14, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO OMAR FRANCO-DE LA CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-418-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Gerardo Omar Franco-De La Cruz appeals the 58-month sentence
imposed on his guilty plea conviction of possession with intent to distribute
marijuana. Because Franco-De La Cruz did not alert the district court to the
specific issues he now raises on appeal, we review for plain error. See United
States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40339     Document: 00514387095     Page: 2   Date Filed: 03/14/2018


                                  No. 17-40339

      First, Franco-De La Cruz argues that the district court improperly
limited the extent of his downward departure by considering improper factors.
See United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). If we assume
without deciding that the district court’s comments at sentencing reflect a clear
or obvious error, we nonetheless conclude that Franco-De La Cruz has not
shown that the error affected his substantial rights. See United States v.
Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (en banc); United States v.
Malone, 828 F.3d 331, 341 (5th Cir.), cert. denied, 137 S. Ct. 526 (2016) (finding
harmless error where the district court merely “muddled the steps” in
formulating the sentence).
      Second, Franco-De La Cruz disagrees with how the district court
balanced the pertinent § 3553(a) sentencing factors. We perceive no reversible
error. See Gall v. United States, 552 U.S. 38, 51 (2007); Malone, 828 F.3d at
342 & n.41.
                                                                   AFFIRMED.




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