     Case: 12-40621       Document: 00512219835         Page: 1     Date Filed: 04/24/2013




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

                                                                            FILED
                                                                           April 24, 2013
                                     No. 12-40621
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HERON ESPINOZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:11-CR-1111-2


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Heron Espinoza appeals the sentence imposed for his conviction for
conspiracy to possess with intent to distribute more than 500 grams of a mixture
or substance containing methamphetamine. The district court sentenced him
to 210 months of imprisonment, the bottom of his advisory guidelines range.
Espinoza argues that the district court failed to consider the 18 U.S.C. § 3553(a)
factors in regard to his arguments for a lesser sentence, failed to adequately



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40621

explain its reasons for the sentence, and erred by implicitly presuming that the
guidelines range was reasonable.
      Because Espinoza did not object on those grounds in the district court,
plain error review applies to his arguments.               See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error,
Espinoza must show a forfeited error that is clear or obvious and that affects his
substantial rights. See 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 it
will do so only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      A sentencing court commits significant procedural error where it fails to
consider the § 3553(a) factors, fails to adequately explain the chosen sentence,
or applies a presumption of reasonableness to the guidelines range. Gall v.
United States, 552 U.S. 38, 51 (2007); Rita v. United States, 551 U.S. 338, 351
(2007). However, “when a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation.” Rita,
551 U.S. at 356. The district court considered Espinoza’s arguments for a
below-guidelines sentence, which included arguments concerning his personal
history and characteristics, the circumstances of his role in the offense, and his
limited criminal history, but the district court decided that a sentence at the
bottom of his advisory guidelines range was appropriate. It never expressly
applied a presumption that the Guidelines were reasonable or required Espinoza
to   demonstrate      extraordinary   circumstances   in   order   to   receive   a
below-guidelines sentence. See United States v. King, 541 F.3d 1143, 1145 (5th
Cir. 2008).
      Moreover, to show that an error affected his substantial rights, Espinoza
is required to demonstrate a reasonable probability that the result of the
proceeding would have been different but for the error. Mondragon-Santiago,
564 F.3d at 364. Although the district court did not explicitly refer to the

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                                  No. 12-40621

§ 3553(a) factors, “a checklist recitation of the section 3553(a) factors is neither
necessary nor sufficient for a sentence to be reasonable.” United States v. Smith,
440 F.3d 704, 707 (5th Cir. 2006). Espinoza has failed to demonstrate an affect
on his substantial rights and thus has not shown plain error.                   See
Mondragon-Santiago, 564 F.3d at 365; King, 541 F.3d at 1145.
      AFFIRMED.




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