   Case: 10-50043       Document: 00511248011          Page: 1    Date Filed: 09/29/2010




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

                                                 FILED
                                                                        September 29, 2010
                                     No. 10-50043
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

DARWIN GALINDO-YANES,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas
                                 No. 2:09-CR-165-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Darwin Galindo-Yanes pleaded guilty to violating 8 U.S.C. § 1326(a) by
having been found unlawfully present in the United States after deportation fol-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50043    Document: 00511248011 Page: 2       Date Filed: 09/29/2010
                                 No. 10-50043

lowing an aggravated-felony conviction. The district court sentenced him under
§ 1326(b)(2), at the bottom of the guideline range, to 37 months of imprisonment.
      Galindo-Yanes argues that the court treated the range as presumptively
reasonable when it directed defense counsel to be more specific in objecting to
the range. Because Galindo-Yanes failed to object on that basis, we review this
claim for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
360 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Galindo cannot show error,
plain or otherwise, because the district court merely sought to comply with the
reasoning in Rita v. United States, 551 U.S. 338, 356-57 (2007).
      Galindo-Yanes also contends, as he did in the district court, that his sen-
tence is substantively unreasonable because his prior crimes of violence that
were used to support the 16-level enhancement are so old. “[A] sentence within
a properly calculated Guideline range is presumptively reasonable.” United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Although the prior crimes
were too old to receive criminal history points, Galindo-Yanes does not dispute
that he had three prior convictions for crimes of violenceSSconvictions for aggra-
vated assault and aggravated battery in 1988 and a 1992 conviction for taking
indecent liberties with a minor child. Galindo-Yanes illegally reentered the
United States in January 2009, only eight months after his April 2008 depor-
tation, and he admitted using cocaine from 2000 to 2007. Thus, the totality of
the circumstances shows that the district court did not abuse its discretion by
denying a downward variance and sentencing within the guidelines range. See
Gall v. United States, 552 U.S. 38, 51 (2007); see also Alonzo, 435 F.3d at 554.
      AFFIRMED.




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