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

                                                 FILED
                                                                            July 23, 2009
                                     No. 08-41098
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JOSE GUADALUPE LUNA-MARTINEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-621-1


Before JOLLY, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Guadalupe Luna-Martinez appeals the 57-month sentence imposed
following his guilty plea conviction for being found unlawfully present in the
United States after deportation in violation of 8 U.S.C. § 1326(a) & (b). He
argues that the district court erred in imposing a sentence within the advisory
guideline range without explaining why it rejected his nonfrivolous arguments
for a lower sentence. He argues that a lower sentence was warranted because
he returned to the United States to obtain employment to support his wife and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-41098

four children, who are United States citizens and because his wife is disabled
and needs help to care for their four children. He argues that the district court’s
failure to address his arguments constitutes error and prevents meaningful
appellate review of the substantive reasonableness of his sentence.
      Luna-Martinez acknowledges that he did not object to the adequacy of the
district court’s explanation of the sentence at the sentencing hearing, and that
under this court’s precedent, plain error review applies. However, he argues
that plain error review is inapplicable and states that he is raising the issue to
preserve it for further review. This court has held that, in the absence of an
objection, it will review the adequacy of a district court’s explanation of its
sentence only for plain error. United States v. Lopez-Velasquez, 526 F.3d 804,
806 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008). To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      In the instant case, the district court imposed a sentence within the
advisory guideline range and denied Luna-Martinez’s request for a lower
sentence without explicit reasons. The district court rejected defense counsel’s
argument that Luna-Martinez’s criminal history category overrepresented the
seriousness of his criminal history. The district court listened to and considered
the arguments for a sentence below the advisory guideline range, adopted the
facts in the Presentence Report, noted that Luna-Martinez had 11 criminal
history points arising out of drug trafficking and other offenses, considered the
18 U.S.C. § 3553(a) factors, and determined that a sentence at the low end of the
advisory guideline range satisfied the § 3553(a) factors. See Rita v. United
States, 127 S. Ct. 2456, 2469 (2007) (holding that district court’s statement that
the guideline range was “appropriate” and “not inappropriate” provided

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sufficient reasons for rejecting request for a sentence below the guideline range);
see also United States v. Mondragon-Santiago, 564 F.3d 357, 362-64 (5th Cir.
2009). Even if the district court erred in not providing adequate reasons for
rejecting Luna-Martinez’s arguments, Luna-Martinez had not shown that the
error affected his substantial rights as he has not shown that a more thorough
explanation by the district court would have changed his sentence.             See
Mondragon-Santiago, 564 F.3d at 362-64. Luna-Martinez has not shown that
the district court plainly erred in rejecting his arguments for a sentence below
the advisory guideline range without providing adequate reasons. See id.
      AFFIRMED.




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