     Case: 09-50941     Document: 00511231552          Page: 1    Date Filed: 09/13/2010




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

                                                 FILED
                                                                        September 13, 2010
                                     No. 09-50941
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN PABLO SILVA-GAYTAN,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-169-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Juan Pablo Silva-Gaytan (Silva) appeals a 46-month within-guidelines
sentence imposed following his guilty plea for illegal re-entry after deportation,
a violation of 8 U.S.C. § 1326(a). During the sentencing hearing, the district
court stated that “the Sentencing Commission and Congress made a
determination” that Silva’s prior alien transportation offense “justified a 16-
level” increase in his offense level. Further, the court stated, “I don’t believe it’s
the place of the Court to second guess those determinations.” Silva contends

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50941

that this statement shows the district court treated the Sentencing Guidelines
as mandatory.
      Because Silva failed to preserve the issue with an objection in the district
court, we review his claim for plain error only.1 To demonstrate plain error,
Silva must show a forfeited error that is clear or obvious and that affects his
substantial rights.2 If he makes such a showing, this court has the discretion to
remedy the error but only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” 3
      Here, the district court made no obvious error. It is true, as appellant
points out, that the Guidelines are not mandatory and are only one factor to
consider during sentencing.4 Further, a district court should not presume the
Guidelines are reasonable.5           However, the court in this case did not act as
though the Guidelines were mandatory. While the court chose not to “second
guess” the Guidelines, it also found that “policy reasons obviously support” the
decision of Congress and the Sentencing Commission to recommend a 16-level
enhancement for a prior alien transportation offense. In addition, the district
court concluded the Guidelines were “appropriate” for Silva in light of the factors
enumerated in 18 U.S.C. § 3553(a). The court specifically noted that Silva was
intelligent and with “a good family,” yet he did not “regard our immigration laws
as laws that he needs to obey.” The court’s consideration of these other factors




      1
         See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert.
denied, 130 S. Ct. 192 (2009).
      2
          Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      3
          Id. (internal citations omitted).
      4
          Gall v. United States, 532 U.S. 38 (2007).
      5
          Nelson v. United States, 129 S. Ct. 890, 892 (2009) (per curiam).

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                                      No. 09-50941

demonstrates that it did not err in presuming the Guidelines to be mandatory
or reasonable.6
       Even if Silva could establish that the district court treated the Guidelines
as mandatory, he cannot show that this error affected his substantial rights.
The district court never expressed a desire to sentence Silva to anything less
than 46 months.          It found that Silva “deserves a bottom of the guideline
sentence.” Thus, Silva cannot show “a reasonable probability that, but for the
district court’s error,” he “would have received a lower sentence.” 7
       AFFIRMED.




       6
         See United States v. Mauskar, 557 F.3d 219, 236 (5th Cir. 2009), cert. denied 129 S.
Ct. 2756 (finding the district court did not treat the Guidelines as mandatory where the court
explicitly declined to impose a below-Guidelines sentence in reliance on the factors set forth
in 18 U.S.C. § 3553(a)).
       7
           United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).

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