     Case: 15-40869      Document: 00513441771         Page: 1    Date Filed: 03/28/2016




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

                                    No. 15-40869
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         March 28, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

GENARO GARCIA-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-1512


Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM: *
       Genaro Garcia-Garcia pleaded guilty to one count of illegal reentry and
received a below-guidelines sentence of 36 months of imprisonment and a two-
year term of supervised release. On appeal, Garcia-Garcia argues that the
district court committed procedural error when it failed to consider his request
for a downward departure based on cultural assimilation and articulate why it
denied this request.        Garcia-Garcia also argues that his sentence was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40869

substantively unreasonable and greater than necessary to satisfy the
sentencing goals under 18 U.S.C. § 3553(a).
      We engage in a bifurcated review of the sentence imposed by the district
court, first considering whether the district court committed a “significant
procedural error,” such as “failing to consider the § 3553(a) factors,” or “failing
to adequately explain the chosen sentence,” and then reviewing the
substantive reasonableness of the sentence for an abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Notwithstanding the above, Garcia-
Garcia concedes that our review is for plain error because he failed to object
below. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Nevertheless, Garcia-Garcia argues that plain error review should not apply
to preserve the issue for further review. To show plain error, Garcia-Garcia
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      With respect to Garcia-Garcia’s claim of procedural error, the district
court listened to his cultural assimilation argument and asked questions to
clarify his background information. The district court then stated that it was
not inclined to look favorably on the request and provided some explanation
why, noting that while Garcia-Garcia had been in the United States a long
time, he did not speak English, and that Garcia-Garcia had two prior drug
convictions. Nevertheless, when imposing the below-guidelines sentence, the
district court did consider, among other things, Garcia-Garcia’s significant ties
to the United States and that his family was in the United States. As the
district court considered Garcia-Garcia’s cultural assimilation argument and



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                                 No. 15-40869

adequately explained the reasons for rejecting it, Garcia-Garcia has not shown
a clear or obvious error. See Puckett, 556 U.S. at 135; Rita v. United States,
551 U.S. 338, 356-59.
      As to Garcia-Garcia’s claim that his sentence was substantively
unreasonable because the district court failed to account for his cultural
assimilation, a below-guidelines sentence is presumptively reasonable. See
United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015). Garcia-Garcia’s
cultural assimilation was discussed at sentencing and the district court
determined that a sentence below the guidelines range was appropriate.
Garcia-Garcia is essentially asking us to reweigh the § 3553(a) factors, but “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Garcia-Garcia has not
shown sufficient reason to disturb the presumption of reasonableness
applicable to his sentence or that his sentence is plainly erroneous. See id.;
Simpson, 796 F.3d at 557-59.
      AFFIRMED.




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