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

                                                                               FILED
                                                                             August 12, 2008

                                         No. 07-50210                    Charles R. Fulbruge III
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                     Plaintiff-Appellee
v.


ROGELIO NAVARRO

                                                     Defendant-Appellant


                     Appeal from the United States District Court
                          for the Western District of Texas
                             USDC No. 6:06-CR-109-ALL


Before GARZA and DENNIS, Circuit Judges, and MILLS,* District Judge.
PER CURIAM:**
       Rogelio Navarro appeals the district court’s sentence of five years’
imprisonment for driving while intoxicated (DWI) on the Fort Hood Military
Reservation. Navarro had twice been convicted of DWI offenses, in violation of
TEX. PENAL CODE §§ 49.04 and 49.09(b) (West 2004), and he pleaded guilty to the
instant DWI charge without having first reached a plea agreement. Texas’ DWI
law is assimilated into federal law in this case by the Assimilative Crimes Act,

       *
           Chief Judge of the Northern District of Mississippi, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50210

18 U.S.C. § 13, (“ACA”), which makes state law applicable to conduct occurring
on lands acquired by the federal government when the act or omission is not
made punishable by an enactment of Congress.
      The ACA “requires federal courts to find the defendant guilty of a ‘like
offense’ and to impose a ‘like punishment.’” United States v. Martinez, 274 F.3d
897, 904-05 (5th Cir. 2001) (citing 18 U.S.C. § 13). The “like punishment”
requirement limits the range of punishment to the minimum and maximum
sentences provided by state law. United States v. Marmolejo, 915 F.2d 981, 984
(5th Cir. 1990). The parties agree that Texas law provides for a statutory range
of two to ten year’s imprisonment for the DWI offense at issue here. Ordinarily,
the federal sentencing guidelines would determine the actual sentence within
that range, since “[i]f there is no guideline for a particular offense, including an
ACA offense, the court is to use ‘the most analogous offense guideline.’” United
States v. Calbat, 266 F.3d 358, 362 (5th Cir. 2001) (citing U.S.S.G. § 2X5.1).
However, it is undisputed that there is no sufficiently analogous offense
guideline for the DWI charge at issue here, and § 2X5.1 provides that, in such
cases, “the provisions of 18 U.S.C. § 3553 shall control.”
      Navarro argues that the district court violated § 3553 by failing to provide
reasons for sentencing him to five years’ imprisonment. Section 3553(c)(2) does
require that the court “state in open court the reasons for its imposition of the
particular sentence,” and § 3553(b)(1) provides that “[i]n the absence of an
applicable sentencing guideline, the court shall impose an appropriate sentence,
having due regard for the purposes set forth” in § 3553(a)(2). The government
acknowledges that the district court failed to state its reasons for the sentence
which it imposed in this case. However, Navarro did not object to the court’s
failure to do so, and we therefore apply a “plain error” standard of review on this
issue. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).

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      We note that it is unclear whether Navarro’s sentence should be reviewed
under the “reasonableness” standard set forth by the U.S. Supreme Court in
United States v. Booker, 543 U.S. 220, 245, 259 (2005) or under the “plainly
unreasonable” standard of 18 U.S.C. § 3742(e)(4). We have utilized the latter
standard to review sentences entered after revocation of supervised release, for
which there are no guidelines, only policy statements. See United States v.
McKinney, 520 F.3d 425, 428 (5th Cir. 2008). Although we have not addressed
the issue, the Fourth Circuit Court of Appeals has held that the “plainly
unreasonable” standard should likewise be applicable in ACA appeals where, as
here, there are no sufficiently analogous offense guidelines. See U.S. v. Finley,
--- F.3d ----, 2008 WL 2574457 (4th Cir. 2008); United States v. McNair, 254 F.
App’x 246, 246 (4th Cir. Nov. 20, 2007); United States v. Floresdelgado, 131 F.
App’x 28, 29 (4th Cir. Apr. 13, 2005).
      We need not resolve whether the “reasonableness” or “plainly
unreasonable” standard applies in this case, since it is apparent that the district
court did not commit “plain error” in sentencing Navarro under either standard.
Plain error must be “error so obvious that our failure to notice it would seriously
affect the fairness, integrity, or public reputation of [the] judicial proceedings
and result in a miscarriage of justice.” U.S. v. Peltier, 505 F.3d 389, 391 n. 3 (5th
Cir. 2007)(quoting United States v. Fortenberry, 914 F.2d 671, 673 (5th Cir.
1990)). Applying this standard, we conclude that the district court did not
commit plain error based on the fact that 1) it sentenced Navarro within the
middle of the statutory range; 2) the presentence report establishes that Navarro
had an extensive criminal history; 3) Navarro failed to object to his sentence as
being unreasonable. In light of these factors, the district court’s failure to




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consider the § 3553 factors can not be considered “plain error,” and we
accordingly AFFIRM the court’s sentence in this case.
     AFFIRMED.




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