     Case: 10-20057 Document: 00511298563 Page: 1 Date Filed: 11/18/2010




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

                                                 FILED
                                                                         November 18, 2010
                                     No. 10-20057
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SIMON SERRATO MANCERA, also known as Simon Mancera Serrato, also
known as Simon Serrato, also known as Jose Zamora, also known as Simon
Serrato-Mancera,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-441-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Simon Serrato Mancera appeals the 70-month sentence imposed following
his guilty plea conviction for being found unlawfully in the United States after
deportation and following a conviction for an aggravated felony in violation of 8
U.S.C. § 1326. He contends that his within-guidelines sentence is procedurally
unreasonable because the district court failed to adequately explain the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20057 Document: 00511298563 Page: 2 Date Filed: 11/18/2010

                                   No. 10-20057

sentence. Because Serrato Mancera did not object to the district court’s failure
to adequately explain the sentence in the district court, plain error review
applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.),
cert. denied, 130 S. Ct. 192 (2009). Serrato Mancera concedes as much but seeks
to preserve for further review his contention that an objection is not required.
         The record reflects that the district court considered Serrato Mancera’s
mitigation arguments and ultimately concluded that a sentence at the bottom
of the applicable guidelines range was appropriate based on the circumstances
of the case and the 18 U.S.C. § 3553(a) factors. See Rita v. United States, 551
U.S. 338, 358-59 (2007). Nevertheless, even if this court were to conclude that
the district court failed to adequately explain the sentence, Serrato Mancera has
not shown that the error affected his substantial rights because there is no
indication that a more thorough explanation would have changed his sentence.
See Mondragon-Santiago, 564 F.3d at 365.          Further, as Serrato Mancera
concedes, this court has rejected his argument that the district court’s failure to
address his mitigation arguments deprived this court of the ability to conduct
meaningful appellate review. See id. Therefore, there is no reversible plain
error.
         Serrato Mancera also contends that his within-guidelines sentence is
substantively unreasonable because it is greater than necessary to satisfy the
sentencing goals of § 3553(a) and represents a clear error in judgment in
balancing the sentencing factors. Specifically, he argues that the district court
failed to give proper weight to the mitigating facts underlying his prior
conviction for indecency with a child, as well as the compelling family
circumstances that motivated his return to the United States.
         When, as here, the district court imposes a sentence within a
properly-calculated guidelines range, this court applies a presumption of
reasonableness to the sentence, inferring that the district court considered the
relevant sentencing factors.       Rita, 551 U.S. at 347; United States v.

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                                  No. 10-20057

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Serrato Mancera asserts
that the lack of an empirical basis for § 2L1.2 precludes an appellate
presumption that his sentence is reasonable. However, as Serrato Mancera
concedes, this court has held that an appellate presumption of reasonableness
can be applied “[e]ven if the Guidelines are not empirically-grounded.”
Mondragon-Santiago, 564 F.3d at 366.
      As previously stated, the district court considered Serrato Mancera’s
mitigation arguments and ultimately concluded that a sentence at the bottom
of the applicable guidelines range was appropriate based on the circumstances
of the case and the § 3553(a) factors. Serrato Mancera’s assertions that the facts
surrounding his prior conviction and his motive for reentering the United States
justified a lower sentence are insufficient to rebut the presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
Therefore, Serrato Mancera has not shown that his within-guidelines sentence
is substantively unreasonable.
      Finally, Serrato Mancera contends that the district court erred by
imposing a 16-level crime of violence enhancement based on his prior Texas
conviction for indecency with a child by contact, a violation of T EXAS P ENAL C ODE
§ 21.11(a)(1). He argues that the Texas conviction is not within the enumerated
offense of sexual abuse of a minor because an offense under § 21.11(a)(1) can be
committed against a victim who is 16 years of age.           As Serrato Mancera
concedes, his argument is foreclosed by circuit precedent. See United States v.
Ayala, 542 F.3d 494, 495 (5th Cir. 2008); United States v. Zavala-Sustaita, 214
F.3d 601, 604 (5th Cir. 2000). Accordingly, the district court’s judgment is
AFFIRMED.




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