     Case: 12-10054       Document: 00512119001         Page: 1     Date Filed: 01/21/2013




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

                                                                            FILED
                                                                         January 21, 2013
                                     No. 12-10054
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JUAN MENDOZA ROSALES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-193-1


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Mendoza Rosales appeals the 63-month sentence imposed following
his guilty plea conviction for illegal reentry following previous deportation. He
argues that the district court committed a significant procedural error by
imposing a sentence within the pertinent guidelines range without giving
specific reasons for rejecting his nonfrivolous arguments in favor of a sentence
below this range. He requests this court to vacate his sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10054     Document: 00512119001      Page: 2   Date Filed: 01/21/2013

                                  No. 12-10054

      We review Mendoza Rosales’s argument for plain error because he raises
it for the first time on appeal. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). To show plain error, he must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error but will do so only if the error
substantially affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      A review of the record does not support Mendoza Rosales’s argument that
the district court failed to consider his arguments for a lower sentence. In fact,
“the full sentencing record reveals the district court’s reasons for the chosen
sentence and allows for effective review by this court.” United States v. Bonilla,
524 F.3d 647, 657-58 (5th Cir. 2008). The court indicated that it would not vary
below the advisory range in light of Mendoza Rosales’s extensive criminal
history, but it also credited his arguments in its decision not to vary upward
from the range. Regardless, even if the district court’s reasons were inadequate
and constituted plain error, Mendoza Rosales has not shown that a more
extensive explanation would have changed his 63-month sentence.                See
Mondragon-Santiago, 564 F.3d at 365.
      Mendoza Rosales also contends that his within-guidelines sentence was
substantively unreasonable because of the following:        the age of his prior
convictions; he had a compelling reason to return to the United States, i.e, his
family; he has not committed any additional crimes since his previous
deportation in 2004; his age and health make it “unlikely” that he would return
to the United States; and his prior criminal history was influenced by his
addiction to alcohol. He relies on extra-circuit case law, including United States
v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir. 2009), to argue that his
within-guidelines sentence was substantively unreasonable.



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    Case: 12-10054     Document: 00512119001     Page: 3   Date Filed: 01/21/2013

                                  No. 12-10054

      The district court listened to these arguments for a downward variance
and determined that a guidelines sentence was appropriate. The court placed
greater weight on Mendoza Rosales’s criminal history, which included a larceny
conviction, three driving while intoxicated convictions, a conviction for delivery
of a controlled substance (cocaine), a conviction for false claim to United States
citizenship, two possession of marijuana convictions, and two convictions for
violations of state tax code. The district court also pointed out that Mendoza
Rosales had three prior deportations for which he was not prosecuted. We give
due deference to the district court’s weighing of the sentencing factors because
it “sees and hears the evidence, makes credibility determinations, has full
knowledge of the facts and gains insights not conveyed by the record.” Gall v.
United States, 552 U.S. 38, 51 (2007) (internal quotation marks and citation
omitted). Mendoza Rosales has not shown that the district court abused its
discretion in weighing incommensurable factors under 18 U.S.C. § 3553(a). See
United States v. Hernandez, 633 F.3d 370, 375-76 (5th Cir. 2011). He also fails
to show that the guidelines range did not account for a factor that should have
received significant weight, and he fails to overcome the presumption that his
guidelines sentence was reasonable. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009); see also United States v Rodriguez, 660 F.3d 231, 233-34 (5th
Cir. 2011).
      The judgment of the district court is AFFIRMED.




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