### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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-Gar cia (Salvador) appeals his 53-month guidelines sentence for illegal r e e n try . H e contends for the first time that the sentence was procedurally unreasonable because the district court failed t o address his nonfrivolous arguments for a d o w n w ard variance. As in Rita v. United States , 55 1 U

. S

. 338, 356 (2007), Salvador presented “straightforward, conceptually simple arguments” in support of a non-guidel i n e s sentence. He argued, inter alia, that he was culturally assimilated as a youth, rehabilitated U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June26 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-41236 Document: 00511900374 Page: 1 Date Filed: 06/26/2012No. 11-41236

during h is 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 guidel ines 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 conce d e s 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). S a lvador also contends for the first time that the district court failed t o 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 “inf

e r th a t th e 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, 10 5 5

- 5 8 (9th C ir. 2009), Salvador challenges the substantive reasonab l e n e s s of hi s s e ntence on the gro u n d s 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 a f ter his deportation, and he

was c ompelled 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. Th e 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
2 Case: 11-41236 Document: 00511900374 Page: 2 Date Filed: 06/26/2012No. 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

o m itted). Salvador has not shown that the district court abused its discreti o n in weighing incommensurable fact o r s u nder § 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 hav e r e c eived 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. 200 9). The judgment of the district court is AFFIRMED.

3 Case: 11-41236 Document: 00511900374 Page: 3 Date Filed: 06/26/2012