     Case: 10-40254 Document: 00511500918 Page: 1 Date Filed: 06/07/2011




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

                                                 FILED
                                                                            June 7, 2011
                                     No. 10-40254
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE JOAQUIN MORALES,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:08-CR-1242-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Joaquin Morales pleaded guilty of possession with intent to distribute
cocaine and was sentenced as a career offender at the bottom of the guidelines
imprisonment range to a 262-month term of imprisonment and to a five year
period of supervised release.             Morales contends that the sentence is
substantively unreasonable because application of the career offender guideline
produced a sentence greater than necessary to effectuate the goals of 18 U.S.C.
§ 3553(a).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40254 Document: 00511500918 Page: 2 Date Filed: 06/07/2011

                                  No. 10-40254

      After United States v. Booker, 543 U.S. 220 (2005), sentences are reviewed
for procedural error and substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010) (citing
Gall v. United States, 552 U.S. 38, 50-51 (2007)). Where, as here, an issue was
not preserved in the district court, this court’s review of the substantive
reasonableness of the sentence is for plain error. Puckett v. United States,
129 S. Ct. 1423, 1428 (2009); see also United States v. Whitelaw, 580 F.3d 256,
259-60 (5th Cir. 2009). To show plain error, an appellant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett,
129 S. Ct. at 1429. 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.
      Citing United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006), the
Government contends that the 262-month sentence is presumptively reasonable
because it is within the correctly calculated guidelines range. Morales contends
that the appellate presumption of reasonableness should not apply because the
career offender guideline is not empirically based. Morales’s argument ignores
and is foreclosed by this court’s holding in United States v. Mondragon-Santiago,
564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
      The record reflects that the district court considered and applied the
section 3553(a) factors. Because the district court’s within guidelines sentence
is presumptively reasonable, and because Morales has not rebutted that
presumption, Morales has not shown that the district court plainly erred by
imposing a substantively unreasonable sentence. See Mondragon-Santiago,
564 F.3d at 367; see also Whitelaw, 580 F.3d at 259-60; Alonzo, 435 F.3d at 554-
55. The judgment is AFFIRMED.




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