IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41236

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL ANTONIO SALVADOR-GARCIA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:11-CR-707-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

 PER CURIAM:*

Rafael Antonio Salvador-Garcia (Salvador) appeals his 53-month

guidelines sentence for illegal reentry. He contends for the first time that the

sentence was procedurally unreasonable because the district court failed to

address his nonfrivolous arguments for a downward variance. As in Rita v.

United States, 551 U.S. 338, 356 (2007), Salvador presented “straightforward,

conceptually simple arguments” in support of a non-guidelines sentence. He

argued, inter alia, that he was culturally assimilated as a youth, rehabilitated

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2012

Lyle W. Cayce

Clerk

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: 11-41236 Document: 00511900374 Page: 1 Date Filed: 06/26/2012
No. 11-41236

during his long prison term, motivated to return to the United States from El

Salvador by the fear of brutal gang violence, and far removed from his two prior

convictions in 1993 for aggravated robbery. The record reflects that the district

court listened to his arguments and responded to several of them. In imposing

the guidelines sentence, the court explained that it considered the § 3553(a)

factors, particularly its duty to protect the public in light of Salvador’s criminal

history. We find no clear or obvious error under these circumstances. See id. at

357-59. Moreover, Salvador concedes that he cannot show that any error

affected the sentencing outcome. See United States v. Mondragon-Santiago, 564

F.3d 357, 365 (5th Cir. 2009). Accordingly, he fails to establish plain error. See

Puckett v. United States, 556 U.S. 129, 135 (2009). 

Salvador also contends for the first time that the district court failed to

consider the sentencing factors under § 3553(a). Although the district court did

not refer to each of the § 3553(a) factors, it was not required to do so. See United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). When a guidelines sentence

is imposed, we “infer that the judge has considered all the factors for a fair

sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519

(5th Cir. 2005). We find no error, plain or otherwise.

Citing United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-58 (9th Cir.

2009), Salvador challenges the substantive reasonableness of his sentence on the

grounds that his aggravated robbery convictions are stale and he has no

subsequent criminal history. He asserts that he was rehabilitated in prison, he

made a concerted effort to remain in El Salvador after his deportation, and he

was compelled to return by gang violence. He asserts that his guidelines

sentence fails to account for these factors and that it represents a clear error of

judgment by the district court in balancing the sentencing factors.

The district court listened to Salvador’s arguments for a downward

variance and determined that a guidelines sentence was appropriate. The court

gave greater weight to Salvador’s criminal history, which included four armed

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No. 11-41236

robberies, and the related need to protect the public, than to Salvador’s claims. 

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). Salvador has not shown that the district court abused its discretion

in weighing incommensurable factors under § 3553(a). See United States v.

Hernandez, 633 F.3d 370, 375-76 (5th Cir.), cert. denied, 131 S. Ct. 3006 (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).

The judgment of the district court is AFFIRMED.

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