     Case: 09-41146     Document: 00511231110          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. 09-41146
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ESTEBAN RODRIGUEZ-LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1451-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Esteban Rodriguez-Lopez appeals his 77-month
sentence following his guilty plea conviction for illegal reentry following previous
deportation. Rodriguez-Lopez asserts that the district court plainly erred in
assessing him two criminal history points under U.S.S.G. § 4A1.1(d) because he
did not commit the instant offense “while under a criminal justice sentence.” He
insists that the error affected his substantial rights because without the two



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41146

criminal history points he would have faced a guideline imprisonment range of
63 to 78 months, instead of 77 to 96 months.
        To show plain error, Rodriguez-Lopez must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United States,
129 S. Ct. 1423, 1429 (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.
        At the time Rodriguez-Lopez reentered the United States on June 10,
2009, there was no evidence that he was under a “criminal justice sentence”
within the meaning of § 4A1.1(d). Thus, the district court erred in applying the
two criminal history points, and the error is obvious. See Puckett, 129 St. at
1429.    There is nothing in the record, however, to indicate “a reasonable
probability” that the district court would resentence Rodriguez-Lopez to a lower
sentence. See United States v. Jones, 596 F.3d 273, 277 (5th Cir. 2010), petition
for cert. filed (May 5, 2010) (No. 09-10607). In fact, the district court denied
Rodriguez-Lopez’s request for a below-guidelines sentence.             Accordingly,
Rodriguez-Lopez has failed to show that his substantial rights were affected by
the district court’s error. See Jones, 596 F.3d at 277; Puckett, 129 S. Ct. at 1429.
        Rodriguez-Lopez also contends that (1) the district court committed
significant procedural error in its consideration and weighing of the 18 U.S.C.
§ 3553(a) factors, and (2) the sentence imposed was substantively unreasonable.


        Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a significant procedural error. Gall, 552 U.S. at 51. If there is no

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                                No. 09-41146

such error, we then review the substantive reasonableness of the sentence
imposed for abuse of discretion. Id.
      Here, after hearing arguments from both parties, the district court briefly
but amply stated its reasons for choosing a within-guidelines sentence. See
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008); Rita v. United
States, 551 U.S. 338, 356-59 (2007). Rodriguez-Lopez is essentially asking us to
substitute his assessment of the appropriate sentence for that of the district
court, which we will not do. See Gall, 552 U.S. at 51. He has not established
that the district court abused its discretion in imposing his sentence, and he has
not rebutted the presumption of reasonableness that attaches to his within-
guidelines sentence. See id.; United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir. 2008). Rodriguez-Lopez has failed to show that the sentence is
unreasonable. See Gall, 552 U.S. at 51; Rita, 551 U.S. at 346-47. The sentence
is thus AFFIRMED.




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