   Case: 11-40381       Document: 00511835007         Page: 1     Date Filed: 04/25/2012




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

                                                                            FILED
                                                                           April 25, 2012
                                     No. 11-40381
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

MARIO JAIMES-ALVAREZ,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 7:11-CR-43-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Mario Jaimes-Alvarez appeals the thirty-three-month sentence imposed


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40381

on his guilty-plea conviction of being unlawfully found in the United States after
deportation. See 8 U.S.C. § 1326. He challenges the procedural reasonableness
of the sentence, arguing that the district court failed to provide adequate reasons
and that the court’s comments at sentencing reflected that it applied a presump-
tion of reasonableness. He further challenges the substantive reasonableness
of the sentence, contending that the sentence is greater than necessary in light
of the 18 U.S.C. § 3553(a) sentencing factors.
      Following United States v. Booker, 543 U.S. 220 (2005), we review sen-
tences for reasonableness in light of those sentencing factors. Gall v. United
States, 552 U.S. 38, 51 (2007). While sentences within the guidelines do not
require a “lengthy explanation,” more is required if the parties present legiti-
mate reasons to depart from the guidelines. Rita v. United States, 551 U.S. 338,
356-57 (2007). The record reflects that the reasons are adequate to allow mean-
ingful appellate review, see Gall, 552 U.S. at 50, and, although brief, the reasons
are sufficient under Rita, 551 U.S. at 357.
      Because Jaimes-Alvarez did not argue in the district that the court was,
in essence, applying a presumption of reasonableness to a guideline sentence,
review of that issue is for plain error. See Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. King, 541 F.3d 1143, 1144 (5th Cir. 2008). Jaimes-
Alvarez argues that the court’s comments at sentencing are similar to those in
United States v. Carbajal-Alvarado, 275 F. App’x 427, 427 (5th Cir. 2008), in
which we remanded for resentencing after determining that the court had
applied a presumption of reasonableness and had required extraordinary circum-
stances to impose a sentence outside the guideline range.
      Although at sentencing the court made comments similar to those at issue
in Carbajal-Alvarado by stating that it did not “see anything here that compels
a variance” and further stating that the “case [was] very typical of othersSSnot
extraordinary, not unusual,” it also stated that it considered the § 3553(a) factors
and determined that a sentence within the guidelines satisfied those factors. See

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                                    No. 11-40381

Gall, 552 U.S. at 49-50 (observing that district courts should consider the guide-
line range as “the starting point” but should then consider all of the § 3553(a)
factors). Carbajal-Alvarado also is distinguishable because there the defendant
preserved the error for appellate review. Even if, arguendo, the district court
committed a clear or obvious procedural error, see Puckett, 556 U.S. at 135,
Jaimes-Alvarez has made no showing that the error affected his substantial
rights. See King, 541 F.3d at 145; United States v. Davis, 602 F.3d 643, 647 (5th
Cir. 2010).
      We review the substantive reasonableness of a sentence under an abuse-
of-discretion standard. Gall, 552 U.S. at 51. If a court imposes a sentence
within a properly calculated guidelines range, we apply a rebuttable presump-
tion that the sentence is reasonable. United States v. Newson, 515 F.3d 374, 379
(5th Cir. 2008). Jaimes concedes that the presumption applies but argues, for
purposes of preserving the issue for possible further review, that the presump-
tion should not apply to sentences calculated under U.S.S.G. § 2L1.2. As he con-
cedes, the argument is foreclosed by United States v. Mondragon-Santiago, 564
F.3d 357, 366-67 (5th Cir. 2009).
      Jaimes-Alvarez also asserts that any presumption that the sentence is rea-
sonable is rebutted by his family circumstances, the excessiveness of the sixteen-
level enhancement, and over representation of his criminal history. Jaimes-
Alvarez has not shown that the sentence failed to account for a factor that
should have received significant weight, that the court gave significant weight
to an irrelevant or improper factor, or that the sentence represented a clear error
of judgment in balancing sentencing factors. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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