     Case: 11-40897     Document: 00511900088         Page: 1     Date Filed: 06/26/2012




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

                                                                            FILED
                                                                           June 26, 2012
                                     No. 11-40897
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ENNER UGARTE-ESPINOZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-269-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Enner Ugarte-Espinoza pleaded guilty to illegal reentry, and, at
sentencing, asked for a sentence at the bottom of the guidelines range because
of his cultural assimilation. The district court specifically considered that
Ugarte-Espinoza had spent most of his life in the United States and was
culturally assimilated. Because of this, the district court sentenced Ugarte-
Espinoza to 46 months in prison, the bottom of the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40897    Document: 00511900088      Page: 2   Date Filed: 06/26/2012

                                  No. 11-40897

      Ugarte-Espinoza argues that the magistrate judge plainly erred during the
plea colloquy pursuant to Federal Rules of Criminal Procedure Rule 11. As no
objection was made to the plea colloquy, review is for plain error only. See
United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain error, Ugarte-
Espinoza must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). The
“reviewing court may consult the whole record when considering the effect of any
error on substantial rights.” Vonn, 535 U.S. at 59. If Ugarte-Espinoza makes
such a showing, we have has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. To show that his substantial rights were abridged, he must
show that it is reasonably probable that but for the Rule 11 error he would not
have pleaded guilty. See United States v. Castro-Trevino, 464 F.3d 536, 541 (5th
Cir. 2006).
      First, Ugarte-Espinoza argues that the magistrate judge failed to
admonish him regarding his right to proceed with appointed counsel, retain new
counsel, or represent himself. Ugarte-Espinoza does not assert that he had the
financial ability to retain counsel or the desire to represent himself. Also, he
concedes that he requested appointment of counsel during his initial appearance
in federal court. Accordingly, he has not shown that he would not have pleaded
guilty but for the magistrate judge’s alleged deficient explanation of his right to
counsel.
      Second, Ugarte-Espinoza argues that the magistrate judge failed to
admonish him specifically concerning the maximum possible term of
imprisonment. The magistrate judge explained that the maximum statutory
penalty was based on Ugarte-Espinoza’s criminal history. Even if this general
admonition were error, Ugarte-Espinoza’s substantial rights were not affected
by the error. He has not asserted on appeal that he would not have pleaded
guilty if the district court had specified the applicable maximum prison term.

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   Case: 11-40897   Document: 00511900088      Page: 3   Date Filed: 06/26/2012

                                  No. 11-40897

See Castro-Trevino, 464 F.3d at 541. He did not attempt to withdraw his guilty
plea after reviewing the presentence report (PSR), which contained the correct
statutory maximum. See United States v. Vasquez-Bernal, 197 F.3d 169, 171
(5th Cir. 1999) (looking to the PSR to determine whether the district court’s
failure to inform the defendant of the applicable sentencing range affected the
defendant’s substantial rights). Ugarte-Espinoza has not established plain error
that affected his substantial rights with respect to this issue.
      Finally, Ugarte-Espinoza argues that the sentence of 46 months in prison
was substantively unreasonable because it failed to account adequately for his
cultural assimilation. Sentences are reviewed for reasonableness in light of the
18 U.S.C. § 3553(a) factors. See United States v. Mares, 402 F.3d 511, 519-20
(5th Cir. 2005). When the district court imposes a sentence within a properly
calculated guidelines range, the sentence is entitled to a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). To
rebut the presumption, a defendant must show that his sentence fails to take
into account a factor that should receive significant weight, gives significant
weight to an irrelevant or improper factor, or represents a clear error of
judgment in balancing the sentencing factors. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). The district court heard and considered carefully all of
the circumstances of Ugarte-Espinoza’s case, including cultural assimilation, in
conjunction with the § 3553(a) factors in determining and explaining the
sentence. Ugarte-Espinoza has failed to overcome the presumption that his
within-guidelines sentence was reasonable. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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