     Case: 10-50400 Document: 00511407554 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-50400
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

FRANCISCO ANTONIO SERAFIN-RODRIGUEZ, also known as Franciso
Antonio Serafin, also known as Francisco Serafin,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2850-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Francisco Antonio Serafin-Rodriguez (Serafin) pleaded guilty without the
benefit of a plea agreement to one count of illegally reentering the United States
after having been deported.           He appeals his 46-month, within-guidelines
sentence, arguing that it is substantively unreasonable.
       Serafin urges that despite his failure to object to the reasonableness of his
sentence in the district court, this court should review the sentence under an


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50400 Document: 00511407554 Page: 2 Date Filed: 03/11/2011

                                  No. 10-50400

abuse-of-discretion standard. He raises the argument only to preserve it for
possible future review because, as he recognizes, it is foreclosed and our review
is for plain error. United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009). To succeed under this standard, Serafin must show an error that is clear
or obvious and that affects his substantial rights, but even so, this court
generally will exercise its discretion to correct the error only if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (citation omitted).
Moreover, we presume that his within-guidelines sentence is reasonable. See
United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      Serafin contends that his sentence is greater than necessary to achieve the
purposes of sentencing because the district court did not take into account his
cultural assimilation to the United States. Though the district court had the
authority to impose a shorter sentence based on this factor, it was not required
to weigh Serafin’s cultural assimilation more heavily than other factors. See
United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The court
heard and understood Serafin's arguments for a lower sentence, but merely
rejected the contention that his cultural assimilation outweighed his criminal
history. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008). Specifically, the court found relevant that Serafin committed some of his
crimes after illegally reentering the United States and that he had six felony
convictions and two misdemeanor convictions. Serafin’s disagreement with the
court’s balancing of the relevant factors is insufficient to show that the district
court committed error, much less plain error, in imposing a within-guidelines
sentence. See Puckett, 129 S. Ct. at 1429; Ruiz, 621 F.3d at 398.
      Serafin also contends that the district court mistakenly observed that he
burglarized cars for a living. However, this remark is supported in the record
because according to the presentence report, though Serafin held jobs in the
past, he was unemployed when he was caught breaking into cars and stealing

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                                  No. 10-50400

tools. In any event, Serafin does not explain how this statement rendered his
sentence substantively unreasonable.
      Finally, Serafin argues that his within-guidelines sentence should not be
presumed reasonable because § 2L1.2, the illegal reentry Guideline used to
determine his sentence, is not supported by empirical data. As Serafin correctly
concedes, however, this argument is foreclosed. See United States v. Duarte, 569
F.3d 528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Accordingly, Serafin has not shown that the district court committed
error, much less plain error. See Puckett, 129 S. Ct. at 1429.
      The judgment of the district court is AFFIRMED.




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