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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40780

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANGEL CASTRO-NEPOMUNCENO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:08-CR-193-1

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Angel Castro-Nepomunceno (Castro) appeals his 24-month sentence

following his guilty plea to illegal reentry. He argues that the district court

violated FED. R. CRIM. P. 32(i)(3)(B) when it did not make a specific ruling or

finding on his request for a downward adjustment for time spent in state

custody. Castro failed to object at sentencing to the district court’s

noncompliance with Rule 32. We review for plain error. See United States v.

United States Court of Appeals

Fifth Circuit

F I L E D

May 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-40780

2

Reyna, 358 F.3d 344, 349-50 (5th Cir. 2004) (en banc). Because the district court

adopted the presentence report (PSR) and having considered the record as a

whole, we are not left to second guess the basis for the district court’s refusal to

depart downward. See United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir.

1994).

Castro argues that the district court, in failing to rule on his motion for

downward departure and in not adequately explaining the basis for the sentence,

committed a “significant procedural error.” An appellate court’s review of a

sentence must start with whether the district court committed any “significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence.” Gall v. United States, 128

S. Ct. 586, 597 (2007). Because Castro did not raise this argument in the district

court, review is limited to plain error. See United States v. Izaguirre-Losoya, 219

F.3d 437, 441 (5th Cir. 2000).

At sentencing, the district court specifically stated that it considered the

§ 3553(a) factors and that a sentence within the guidelines range satisfied the

objectives of § 3553. The district court committed no procedural error. See Rita

v. United States, 127 S. Ct. 2456, 2468 (2007).

We are without jurisdiction to consider Castro’s argument that the district

court erred in denying his motion for a downward departure as there is no

indication in the record that the district court was under the mistaken

impression that it could not depart. See United States v. Hernandez, 457 F.3d

416, 424 (5th Cir. 2006). We retain jurisdiction to review “whether the district

court’s imposition of a guideline sentence instead of a non-guideline sentence

was reasonable.” United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert.

denied, 128 S. Ct. 163 (2007). Because Castro did not object in the district court
No. 08-40780

3

to the unreasonableness of his sentence, review is for plain error. See United

States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).

If the sentencing judge imposes a sentence within a properly-calculated

guidelines range, the sentence is entitled to a presumption of reasonableness.

See Rita, 127 S. Ct. at 2462. The district court imposed a sentence at the bottom

of the properly-calculated guidelines range after considering the § 3553(a)

factors. Castro has failed to show that the sentence is unreasonable. The

sentence is affirmed.

AFFIRMED.