     Case: 09-40640     Document: 00511039180          Page: 1    Date Filed: 03/02/2010




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

                                                  FILED
                                                                              March 2, 2010
                                      No. 09-40640
                                    Summary Calendar                      Charles R. Fulbruge III
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee

v.

SANTOS EFRAIN TURCIOS-ORTIZ,

                                                    Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-168-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Santos Efrain Turcios-Ortiz appeals the 25-month sentence imposed
following his guilty plea to illegal reentry. See 8 U.S.C. § 1326. As he did in
district court, he primarily contends:              his within-guidelines sentence is
procedurally unreasonable because the district court failed to provide
s u ffic ie n t   reasons    fo r   im p o s in g   it ;   and,    th e      sen ten c e   was




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40640    Document: 00511039180      Page: 2    Date Filed: 03/02/2010



                                  No. 09-40640

substantively unreasonable because it was greater than necessary to achieve the
purposes of sentencing.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 50–51 (2007).       In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 752–53. If, as in this case,
there is no such error, we then review the substantive reasonableness of the
sentence imposed, as noted above, for an abuse of discretion. Id. at 751–53. “[A]
sentence within a properly calculated Guideline range is presumptively
reasonable”. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Turcios maintains the district court committed procedural error by failing
to adequately explain his sentence. Although a district court is required to
provide some explanation for the sentence, “when 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, 356 (2007). “Where
the defendant or prosecutor presents nonfrivolous reasons for imposing a
different sentence, however, the judge will normally go further and explain why
he has rejected those arguments.” Id. at 357. This explanation requirement

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                                  No. 09-40640

may be satisfied if the district court, after listening to the parties’ contentions,
decides that a sentence within the guideline sentencing range is appropriate.
Id. at 357–59.
      Here, the district court, after listening to Turcios’ counsel’s request for a
below-guidelines sentence, sufficiently explained its reasons for choosing a
within-guidelines sentence.       These reasons included:        Turcios’ specific
characteristics and history; the need to protect the public; and the need to deter
future criminal conduct. No further explanation was required. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008) (reviewing within-guidelines sentence and holding that explanation was
sufficient where district court stated that the sentence would “adequately
address the objectives of punishment and deterrence”).
      For his second contention, Turcios maintains his within-guidelines
sentence was substantively unreasonable. Because it fell within his properly
calculated guidelines range, the sentence is entitled to a presumption of
reasonableness. See United States v. Campos-Maldonado, 531 F.3d 337, 338
(5th Cir.), cert. denied, 129 S. Ct. 328 (2008). Turcios has failed to overcome this
presumption.
      Finally, Turcios preserves for possible Supreme Court review the
contention that Guideline § 2L1.2 (increasing offense level for unlawfully
entering or remaining in the United States following certain prior convictions),
under which his sentence was calculated, is flawed; and that, therefore, the
presumption should not apply. In short, he concedes our precedent forecloses
this contention.
      AFFIRMED.



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