     Case: 09-20405 Document: 00511299371 Page: 1 Date Filed: 11/19/2010




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

                                                 FILED
                                                                         November 19, 2010
                                     No. 09-20405
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ABEL ALFONSO AREVALO, also known as Alexander Eli Arevalo, also known
as Abel Alfonso Arevaldo, also known as Abel Arevalo, also known as Abel A.
Arevalo, also known as Ableabel Alfonso Arevalo, also known as Alexander
Arevalo,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-806-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Abel Alfonso Arevalo appeals the sentence imposed following his guilty
plea conviction for being unlawfully present in the United States following
removal. The district court sentenced Arevalo to 70 months of imprisonment,
the lowest sentence within the guidelines sentence range.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20405

      For the first time on appeal, Arevalo argues that the district court did not
provide sufficient reasons for the sentence. Because Arevalo did not object to the
district court’s failure to explain the sentence, he acknowledges that plain error
review applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      Arevalo argues that the district court erred by not providing more detailed
reasoning for the sentence because he raised numerous nonfrivolous arguments
for a downward departure or variance from the guidelines sentence range.
Based on our review of the sentencing hearing and the remainder of the
sentencing record, we conclude that the district court’s comments at sentencing
were sufficient. Arevalo is correct that under Rita v. United States, 127 S.Ct.
2456 (2007), when a district court is presented with nonfrivolous arguments for
a sentence outside the guidelines more than a brief statement of reasons is
required even if the court imposes a sentence within the guidelines. However,
Rita and our cases following Rita make clear that much less than a full
discussion is required. In Rita, “the Court noted that the record made clear that
the judge listened to and considered the arguments and evidence but simply
found the circumstances insufficient to warrant a sentence below the Guidelines
range.” United States v. Gomez-Herrera, 523 F.3d 554, 565 (5th Cir. 2008). The
judge’s comments regarding the sentence were limited to a statement that the
guideline range was not ‘inappropriate’ and that a sentence at the bottom of the
range was ‘appropriate.’ Rita, 127 S.Ct. at 2469. Although the Court
acknowledged that the judge might have said more, he was not required to do
so. Id.
      In this case, the district court at sentencing heard the defendant’s and his
attorney’s arguments for a sentence below the guideline range. They argued
that most of his criminal history was due to his drug addiction, that he was
culturally assimilated in the United States, that he returned to the United
States because El Salvador was plagued with persecution and gang violence

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                                  No. 09-20405

which involved the threat of physical injury, that he had a plan to relocate to El
Salvador with his wife, that he had survived an abusive childhood that resulted
in untreated depression, that he provided guidance to his sister’s children, that
his remote 2001 conviction was responsible for the 16-level enhancement that
significantly raised his guidelines sentence range, and that the sentence was far
longer than any sentence he had previously received. Arevalo also argued that
he should get credit for his time in immigration custody. The government
recommended a sentence at the low end of the guideline range, but addressing
the sentencing factors pointed out that Arevalos’s lengthy criminal history
involved drugs, guns and burglary. The government also addressed the factor
of deterrence because of Arevalos’s extensive family in the United States and the
draw to return again once he is deported after serving his sentence.          The
probation office recommended a sentence in the mid-range due to Arevalos’s
criminal record. After questioning the defendant about his family situation and
career, the district court stated that although he liked the defendant on a
personal level he was disturbed by his record. The arguments and the judge’s
comments addressed several sentencing factors, including the history and
characteristics of the defendant, and the need for adequate deterrence. 18
U.S.C. § 3553(a). In addition, when the defendant raised the issue of his time
in immigration custody, the court stated that he used the bottom of the
guidelines for that reason. The court’s statements, though minimal, provide a
sufficient basis for appellate review and satisfy the standard set in Rita.
      Even if the district court erred by failing to explain why it had rejected
Arevalo’s nonfrivolous arguments for a sentence below the guidelines range, as
Arevalo acknowledges, he cannot show that an explanation would have affected
his sentence. Therefore, he cannot show that the error affected his substantial
rights or constituted reversible plain error. See Mondragon-Santiago, 564 F.3d
at 363-64, 365.



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                                  No. 09-20405

      Arevalo also argues that the sentence was substantively unreasonable. He
maintains that a presumption of reasonableness should not apply to his within
guidelines range sentence because the Guideline upon which it was based,
U.S.S.G. § 2L1.2, is not empirically based.      As Arevalo acknowledges, this
argument is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th
Cir.), cert. denied, 130 S. Ct. 378 (2009); Mondragon-Santiago, 564 F.3d at
366-67. Because Arevalo did not object to the substantive reasonableness of the
sentence, plain error review applies. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007).
      Acknowledging that a presumption of reasonableness applies, United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), Arevalo asserts that the
presumption is rebutted by the facts and circumstances of this case. Citing
primarily cases from the Ninth Circuit, Arevalo argues that the presumption of
reasonableness has been rebutted because of the same factors that he relied on
in his argument for a sentence below the guideline range.         While Arevalo
provided significant mitigating evidence, his substantial criminal record was an
aggravating factor.    The district court had before it both mitigating and
aggravating factors and implicitly balanced these factors and determined that
a sentence at the low end of the guidelines range was appropriate. Considering
the totality of the circumstances, as we must, see Gall v. United States, 552 U.S.
38, 51 (2007), Arevalo has not shown that the sentence was unreasonable or
plainly erroneous. See Rita, 551 U.S. at 359-60; Peltier, 505 F.3d at 392-94.
      AFFIRMED.




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