     Case: 09-11217     Document: 00511218736          Page: 1    Date Filed: 08/30/2010




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

                                                 FILED
                                                                           August 30, 2010
                                     No. 09-11217
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE FELICIANO SALDANA-MARTINEZ, also known as Jose Soldana-
Martinez, also known as Jose F. Saldana-Martinez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:09-CR-73-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jose Feliciano Saldana-Martinez appeals the sentence imposed following
the revocation of his supervised release. He contends that the district court’s
complete failure to explain the sentence and address his nonfrivolous arguments
in support of a lower sentence did not satisfy the requirements of procedural
reasonableness under Rita v. United States, 551 U.S. 338, 356-57 (2007).
Saldana-Martinez acknowledges that this court applies plain error review when


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11217    Document: 00511218736 Page: 2         Date Filed: 08/30/2010
                                 No. 09-11217

a defendant fails to object to the district court’s failure to explain the sentence.
Nevertheless, he seeks to preserve for further review his contention that an
objection is not required when it is premised on the district court’s failure to
address arguments in support of a lower sentence. Alternatively, he argues that
the strict application of the plain error standard should be mitigated by defense
counsel’s specific and explicit request that the district court consider an
underlying sentencing error when determining his revocation sentence. Because
Saldana-Martinez did not object to the district court’s failure to explain the
revocation sentence in the district court, plain error review applies. See United
States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
      The district court’s failure to explain the within-guidelines sentence
imposed upon revocation of Saldana-Martinez’s supervised release was error
under Rita that was clear or obvious. See United States v. Mondragon-Santiago,
564 F.3d 357, 364 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). However,
Saldana-Martinez has not shown that the error affected his substantial rights.
In Mondragon-Santiago, this court rejected the defendant’s argument that the
district court’s failure to explain the sentence affected his substantial rights
because it made meaningful appellate review impossible, holding that the
argument was foreclosed by circuit precedent, “so far as within-Guidelines
sentences [were] concerned.” Id. at 365. Further, although Saldana-Martinez
argues that there was a reasonable probability that more extensive
consideration of his argument regarding the underlying sentencing error would
have led the court to agree that he should not have been treated as a category
II offender, he has not shown that an explanation would have changed his
within-guidelines sentence. See id. Therefore, there is no reversible plain error,
and the district court’s judgment is AFFIRMED.




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