     Case: 10-40311 Document: 00511425496 Page: 1 Date Filed: 03/28/2011




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

                                                 FILED
                                                                           March 28, 2011
                                     No. 10-40311
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTONIO SILVA SEGURA, also known as Antonio Segura-Ramirez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-2727-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Antonio Silva Segura (Silva) appeals his sentence for illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(1). The guidelines range of imprisonment
was 24 to 30 months. Silva was sentenced to 60 months of imprisonment and
three years of supervised release.
       Silva contends that the district court abused its discretion by denying his
implied request for a continuance. This claim of error is unfounded as Silva
made only an implied request after sentence was pronounced.                       Assuming

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40311 Document: 00511425496 Page: 2 Date Filed: 03/28/2011

                                  No. 10-40311

arguendo that this claim of error is subject to the abuse of discretion standard,
see United States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999), Silva lacks a
legitimate basis for claiming that the factual basis of the sentence was a surprise
or that the surprise was prejudicial, see Irizarry v. United States, 553 U.S. 708,
715-16 (2008). Therefore, he has not demonstrated any error, plain or otherwise.
      Silva also contends that the district court failed to adequately explain the
extent of the variance and that the sentence was substantively unreasonable.
Sentences are reviewed under an abuse of discretion standard for procedural
error and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51
(2007). Because Silva did not object to the adequacy of the district court’s
reasons for imposing sentence, review is for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). It is apparent from the record how and why the district selected the 60-
month sentence, and Silva has failed to show that the district court committed
any procedural error, plain or otherwise. See United States v. Lopez-Velasquez,
526 F.3d 804, 806-07 (5th Cir. 2008).
      Silva’s objection to the sentence as being greater than necessary under the
18 U.S.C. § 3553(a) factors preserved his claim of error with respect to the
substantive reasonableness of the sentence. See Mondragon-Santiago, 564 F.3d
at 361. The 60-month sentence was substantively reasonable as the district
court justified the 30-month variance based on a proper application and
weighing of the § 3553(a) factors. See United States v. Smith, 440 F.3d 704, 708-
10 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




                                        2
