     Case: 10-10502 Document: 00511433334 Page: 1 Date Filed: 04/04/2011




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

                                                 FILED
                                                                             April 4, 2011
                                     No. 10-10502
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

GUSTAVO PULIDO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-160-6


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       A requested downward variance having been denied at sentencing,
Gustavo Pulido appeals his 48-month within-Guidelines sentence, imposed
following his guilty-plea conviction for conspiracy to smuggle firearms from the
United States to Mexico, in violation of 18 U.S.C. § 371.                 Challenging the
substantive reasonableness of his sentence, Pulido maintains that, in deciding
upon his sentence, the district court failed to consider his physical condition and
expected deportation.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10502 Document: 00511433334 Page: 2 Date Filed: 04/04/2011

                                    No. 10-10502

      Pulido concedes he did not specifically object to the reasonableness of his
sentence in district court, and states that, as a result, his sentence is reviewed
only for plain error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
On the other hand, our court has applied an abuse-of-discretion standard where,
as here, defendant presented detailed assertions and testimony in support of a
downward variance. United States v. Rodriguez, 523 F.3d 519, 525-26 & n.1 (5th
Cir. 2008). It is unnecessary to decide whether Pulido’s failure to object to the
reasonableness of his sentence results in plain-error review—the district court’s
reasons were sufficient under either standard. See, e.g., id.
      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 advisory
Guideline-sentencing range for use in deciding on the sentence to impose. Gall
v. United States, 552 U.S. 38, 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). Pulido does not claim
procedural error. As Pulido concedes, a presumption of reasonableness applies
to his within-Guidelines sentence. E.g., United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
      Pulido’s 48-month sentence was near the bottom of his 46-57 months
advisory sentencing range. It was imposed after the court stated it would “take
into account the things [it had] heard” at the sentencing hearing in deciding on
the sentence. Along that line, and contrary to Pulido’s assertions, the court
considered his physical condition and expected deportation. In addition, Pulido
has not shown that the court improperly accounted for any sentencing factor or
that its balancing of those factors “represent[ed] a clear error of judgment”. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct.
1930 (2010).      Accordingly, he has failed to rebut the presumption of

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                               No. 10-10502

reasonableness that attaches to his within-Guidelines sentence. See United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
     AFFIRMED.




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