     Case: 10-20809     Document: 00511639981         Page: 1     Date Filed: 10/21/2011




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

                                                                            FILED
                                                                         October 21, 2011
                                     No. 10-20809
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ISRAEL RIOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-98-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Israel Rios pleaded guilty to illegal reentry following deportation after
conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2). The
district court imposed a within-guidelines sentence of 56 months, which reflected
a one-month credit for the time Rios spent in the custody of Immigration and
Customs Enforcement (ICE). Rios appeals the district court’s denial of his
motion for downward departure based on credit for time served in state custody
after his parole was revoked.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20809

      Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for procedural error and substantive reasonableness in light of the
sentencing factors in 18 U.S.C. § 3553(a) under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007).
      Rios first argues that the district court erred when it unreasonably denied
his request for a downward departure based on time served in state custody.
Because Rios preserved this claim of error in the district court, we apply the
abuse-of-discretion standard. See Russell v. Plano Bank & Trust, 130 F.3d 715,
720 (5th Cir.1997) (“A party may be excused from the requirement of making a
specific objection only where the party’s position previously has been made clear
to the trial judge and it is plain that a further objection would be unavailing.”)
      Under United States v. Barrera-Saucedo, 385 F.3d 533, 537 (5th Cir. 2004),
“it is permissible for a sentencing court to grant a downward departure to an
illegal alien for all or part of time served in state custody from the time
immigration authorities locate the defendant until he is taken into federal
custody.” “This Court has jurisdiction to review a district court’s refusal to grant
a downward departure from the Guidelines only if the refusal was based on an
error of law.” Barrera-Saucedo, 385 F.3d at 535 (internal citation omitted). “A
refusal to grant a downward departure is a violation of law only if the court
mistakenly assumes that it lacks authority to depart.” United States v. Cooper,
274 F.3d 230, 248 (5th Cir. 2001) (internal quotation and citation omitted). Rios
does not argue that the district court believed that it was not authorized to
depart. Furthermore, there is no indication in the record that the district court
was under the mistaken impression that it could not depart.              The court
specifically addressed the issue of a departure based on credit for time served
but concluded that it was not warranted in this case. Thus, this court lacks
jurisdiction to review the district court’s denial of Rios’s downward departure
motion. See Barrera-Saucedo, 385 F.3d. at 535.



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                                   No. 10-20809

      Rios also argues that the district court erred when it failed to explain why
it denied his request for a downward departure based on credit for time served.
Because Rios failed to present this argument in the district court, we review for
plain error. See Mondragon-Santiago, 564 F.3d at 361. To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429
(2009). If the appellant makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      To the extent Rios is complaining about the district court’s denial of his
downward departure motion, this court is without jurisdiction to review that
denial. See Barrera-Saucedo, 385 F.3d at 535. To the extent Rios is complaining
that the district court failed to adequately explain the sentence it imposed, his
argument is without merit. The record in the instant case reflects that the
district court imposed a within-guidelines sentence. “[W]hen a judge decides
simply to apply the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation.” Rita v. United States, 551 U.S. 338, 347 (2007) .
However, “more than a brief statement may be required when a district court is
presented with nonfrivolous arguments for a sentence outside the Guidelines.”
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (internal citation
omitted). On the other hand, a district court’s explanation is sufficient where
the record reflects that the district court listened to and considered the
defendant’s arguments for a below-guidelines sentence and then indicated that
a sentence within the guidelines range was appropriate. See Rodriguez, 523
F.3d at 525-26.
      In the instant case, the district court did not plainly err with respect to the
sufficiency of its explanation for the sentence it imposed. The record reflects
that the district court considered Rios’s argument that he receive credit for time
served. The court also listened to the probation officer’s response, concluding

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                                   No. 10-20809

that Rios should receive a one-month credit for the time he spent in ICE custody.
The record also reflects that the district court listened to the parties’ arguments
regarding a downward departure based on either cultural assimilation and
criminal history. Finally, in imposing the sentence, the district court noted that
a within-guidelines sentence would satisfy the factors under 18 U.S.C. § 3553(a).
Thus, the record in the instant case reflects that the district court listened to and
considered Rios’s arguments for a downward departure but simply found the
circumstances insufficient to warrant a lesser sentence in light of the Guidelines
and the § 3553(a) factors. See Rita, 551 U.S. at 358; Rodriguez, 523 F.3d at
525-26. The court’s failure to give additional reasons does not constitute plain
error. In addition, to show that the purported failure to give adequate reasons
affected his substantial rights, Rios must show that it affected the outcome, i.e.,
that further explanation would have resulted in a lesser sentence.               See
Mondragon-Santiago, 564 F.3d at 364-65. He makes no such showing.
      AFFIRMED.




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