     Case: 14-40376      Document: 00513045957         Page: 1    Date Filed: 05/18/2015




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

                                    No. 14-40376                                   FILED
                                  Summary Calendar                             May 18, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS OSMIN CRUZ-REYES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:13-CR-423


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Carlos Osmin Cruz-Reyes (Cruz) appeals his
sentence following his guilty plea conviction for illegal reentry following
deportation. Cruz was sentenced to 46 months of imprisonment, which was at
the bottom of the Sentencing Guidelines range.
       This court conducts a bifurcated analysis of a sentence imposed by the
district court. Gall v. United States, 552 U.S. 38, 51 (2007). We first determine


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40376    Document: 00513045957     Page: 2   Date Filed: 05/18/2015


                                 No. 14-40376

if the district court committed any significant procedural errors, “such as
failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553 factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Id. If the district court’s decision is free of
procedural error, we then consider the substantive reasonableness of the
sentence. See United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th
Cir. 2009). When, as here, the sentence is within the guidelines range, we
afford it a presumption of reasonableness, which may be rebutted only by a
showing that the sentence (1) does not account for a § 3553(a) factor that should
receive significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
§ 3553(a) factors. See United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).
      Cruz did not object to the reasonableness of the sentence after it was
imposed, so our review is for plain error only. See United States v. Whitelaw,
580 F.3d 256, 259-60 (5th Cir. 2009). To show reversible plain error, Cruz must
identify a clear or obvious error that affected his substantial rights.      See
Puckett v. United States, 556 U.S. 129, 135 (5th Cir. 2009). If he makes this
showing, we have the discretion to correct the error, but we generally will not
do unless we conclude that the error affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      There is no merit to Cruz’s contention that, by failing to credit his
version of the facts regarding his prior criminal history and his motives for
reentering this county, the district court treated the Guidelines as though they
were mandatory. “District courts enjoy wide discretion in determining which
evidence to consider and to credit for sentencing purposes.” United States v.
Cantu-Ramirez, 669 F.3d 619, 628 (5th Cir. 2012). As noted by the district



                                          2
    Case: 14-40376     Document: 00513045957      Page: 3    Date Filed: 05/18/2015


                                  No. 14-40376

court, even giving Cruz the “benefit of the doubt” as to the specifics of his crime,
the fact remains that he was convicted of aggravated assault, a crime of
violence under the Guidelines. Cruz did not adduce any competent evidence to
rebut the presentence report, so the district court was not required to credit
his unsupported allegations. See Cantu-Ramirez, 669 F.3d at 629.
      Neither is there merit in Cruz’s contention that the district court did not
consider the § 3553(a) sentencing factors. The court cited Cruz’s criminal
history and characteristics as a basis for rejecting his request for a downward
variance. Moreover, because Cruz’s sentence was within the guidelines range,
we will infer that the district court considered all the factors for a fair sentence
set forth in the Guidelines in light of the sentencing considerations set out in
§ 3553(a). See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th
Cir. 2008). The fact that the district court found some of the § 3553 factors
more relevant than others does not mean that it failed to consider the
necessary sentencing factors. See United States v. Herrera-Garduno, 519 F.3d
526, 531 (5th Cir. 2008).
      AFFIRMED.




                                         3
