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

                                                 FILED
                                                                             July 1, 2009
                                     No. 07-41005
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

REFUGIO JAVIER DE LA GARZA-VALLES,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-456-1


Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Refugio Javier De La Garza-Valles challenges the sentence imposed
following his guilty plea conviction of being an alien unlawfully found in the
United States after deportation, having been previously convicted of an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b). De La Garza argues
that his sentence is procedurally unreasonable because the district court failed
to permit counsel to argue for an appropriate sentence and failed to provide
sufficient reasons.        He also argues that his sentence is substantively

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 07-41005

unreasonable in light of Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007),
and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007). He further
contends that his sentence is substantively unreasonable because U.S.S.G.
§ 2L1.2(b)(1)(A)(i) (2006) is flawed as it was not based on empirical data.
      De La Garza did not preserve these objections in the district court. Review
is therefore for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F. 3d 337, 339 (5th
Cir.), cert. denied, 129 S. Ct. 328 (2008). De La Garza “must demonstrate
(1) error, (2) that is clear or obvious, and (3) that affects substantial rights.”
Campos-Maldonado, 531 F. 3d at 339. “If these conditions are met, this court
may exercise its discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
      The district court provided defense counsel ample opportunity to address
the arguments that counsel deemed appropriate. Also, the formalistic procedure
suggested by De La Garza’s arguments is not prescribed by the authorities upon
which De La Garza relies. See F ED. R. C RIM. P. 32(i)(4)(A)(i); Rita v. United
States, 551 U.S. 338, 127 S. Ct. 2456 (2007); and Gall, 128 S. Ct. at 596.
Additionally, nothing in the record indicates that De La Garza’s sentence would
have been different if the court had provided more explanation of its chosen
sentence.    See Mondragon-Santiago, 564 F.3d at 363-64.             De La Garza’s
argument that his sentence is procedurally unreasonable thus does not provide
a basis for relief.
      De La Garza’s argument regarding Gall and Kimbrough does not establish
that his sentence is substantively unreasonable, as the record does not suggest
that the district court wished to impose a different sentence but felt constrained
by this court’s precedent. See Campos-Maldonado, 531 F.3d at 338-39. Finally,
this court has rejected De La Garza’s argument that § 2L1.2 is flawed. See id.
      The judgment of the district court is AFFIRMED.



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