     Case: 13-40752      Document: 00512688645         Page: 1    Date Filed: 07/07/2014




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

                                    No. 13-40752                                 FILED
                                  Summary Calendar                            July 7, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MELVIN JAVIER RODRIGUEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:13-CR-26-1


Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Melvin Javier Rodriguez appeals his guilty plea and sentence for
possession with intent to distribute heroin. As he concedes, his claims are
reviewed only for plain error because they were not raised in the district court.
To show plain error, Rodriguez must show that a forfeited error was “clear or
obvious, rather than subject to reasonable dispute” and that the error affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40752

If he does, we have the discretion to correct the error if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks, alteration, and citation omitted). To show that an error or
omission has affected his substantial rights concerning his plea, he “must show
a reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
      In his brief, Rodriguez first contends that his plea was invalid because
the district court failed to inquire in further detail at rearraignment about his
previous expression of dissatisfaction with counsel. He offers no authority for
this contention. The court adequately ascertained that Rodriguez’s differences
with counsel had been resolved and that Rodriguez was “very appreciative”
and satisfied with counsel’s work on his behalf.
      Similarly, Rodriguez offers no support for his contention that the court
should have asked and advised him about the consequences of his rejection of
the Government’s offer of a plea agreement.          Because the record reveals
nothing about the plea offer, Rodriguez’s assertions are based wholly on
imaginative conjecture. Indeed, any inquiry by the court about the advisability
of accepting or rejecting a plea agreement would have risked violating the
absolute prohibition of court participation in plea negotiations. See United
States v. Hemphill, 748 F.3d 666, 672 (5th Cir. 2014). Rodriguez fails to show
any error, plain or otherwise, in the acceptance of his guilty plea.
      Finally, Rodriguez contends that his sentence was unreasonable.
Although this challenge is reviewable for plain error, it fails under our typical
review for reasonableness under an abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 46 (2007); Rita v. United States, 551 U.S. 338, 351
(2007). The “safety valve” sentence was below the statutory minimum and




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                                No. 13-40752

within the correct revised guideline range.        It is therefore presumed
reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      The court gave adequate reasons for the within-guideline sentence. See
Rita, 551 U.S. at 356; United States v. Herrera-Garduno, 519 F.3d 526, 531
(5th Cir. 2008). By arguing that the district court should have weighed the
sentencing factors differently, Rodriguez merely invites us to adopt his
assessment of those factors rather than the district court’s, which is contrary
to the deferential review mandated by Gall. See Gall, 552 U.S. at 51. His mere
disagreement with the propriety of the sentence does not rebut the
presumption of reasonableness. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010). Rodriguez shows no unreasonableness or plain error in his
sentence.
      The judgment is AFFIRMED.




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