     Case: 10-20777     Document: 00511616205         Page: 1     Date Filed: 09/28/2011




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

                                                                            FILED
                                                                        September 28, 2011
                                     No. 10-20777
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID ARGUETA, also known as Davida Argueta, also known as David Jose
Argueta, also known as David Josue Argueta, also known as Juan Jose Aguilar,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-149-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        David Argueta pleaded guilty of violating 8 U.S.C. § 1326(a) and (b) by
being found in the United States without permission, following removal. The
district court sentenced him at the bottom of his advisory sentencing guidelines
range to a 46-month term of imprisonment and gave him an additional one
month and 14 days of credit for the time he served in federal custody. Argueta
appeals the sentence imposed in his case.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20777

      Ordinarily, we review sentences, including those based on variances, for
procedural error and for substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence that falls
within a defendant’s properly calculated guidelines range is entitled to a
rebuttable presumption of reasonableness. United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006). If a defendant failed to object to an error at sentencing,
we will review the issue for plain error only. Puckett v. United States, 129 S. Ct.
1423, 1429 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
To prevail on plain-error review, a defendant must show that an error occurred,
that the error was plain, which means clear or obvious, and that the error
affected his substantial rights. Peltier, 505 F.3d at 392.
      In his appellate brief, Argueta asserts, without argument or citation to
legal authority, that he essentially is being resentenced for his 2004 burglary
offense and that the district court erred in calculating his criminal history
points. He has waived those claims by failing to adequately address them.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP.
P. 28(a)(9)(A).
      Argueta also asserts, for the first time on appeal, that his sentence violates
his constitutional rights. However, Argueta’s within-guidelines sentence is not
grossly disproportionate to his offense such that it violates the Eighth
Amendment’s prohibition of cruel and unusual punishment. See United States
v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).             Nor did the
enhancement of Argueta’s sentence under U.S.S.G. § 2L1.2(b)(1)(A)(vii) violate
his right to equal protection of the law due to disparities in the seriousness of
convictions that trigger its application. See id.
      Finally, Argueta asserts that his sentence is both procedurally and
substantively unreasonable. Argueta’s complaint that the district court applied
the guidelines as mandatory, raised for the first time on appeal, is not supported



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                                   No. 10-20777

by the record. His argument that his sentence is greater than necessary to meet
the sentencing goals in 18 U.S.C. § 3553(a) is unconvincing.
      Argueta contends, as he did in the district court, that the district court
should have imposed a shorter sentence to account for disparities caused by fast-
track programs. However, he has not shown that the district court’s failure to
consider that argument constituted an abuse of discretion. See United States v.
Gomez-Herrera, 523 F.3d 554, 562-63 & n.4 (5th Cir. 2008). Nor has Argueta
shown that the district court erred by failing to sua sponte consider disparities
caused by application of the § 2L1.2 enhancement. Finally, Argueta has not
shown that the district court should have granted a downward variance based
on the benign nature of his offense, his limited criminal history, and his family
related motives for returning to the United States. The district court considered
Argueta’s arguments, the facts of the case, and the appropriate statutory
sentencing factors before imposing Argueta’s sentence. Argueta’s disagreement
with the district court’s assessment of the factors is insufficient to establish that
the district court abused its discretion. See id. at 565-66.
      Argueta’s arguments do not show that his sentence is procedurally or
substantively unreasonable. See Gall, 552 U.S. at 51. They do not rebut any
presumption of reasonableness that attaches to his within-guidelines sentence.
See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied 130 S.
Ct. 1930 (2010). Nor do they establish that the district court committed error,
plain or otherwise. See Peltier, 505 F.3d at 392.
      AFFIRMED.




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