### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41061 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDUARDO ROSAS-VILLARREAL, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12-CR-808-1
Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges. PER CURIAM: * Eduardo Rosas-Villarreal was convicted of o ne count of being found in the United States after previous deportation and was sentenced to serve 46 months in pr i s on. Rosas-Villarreal argues that the district court plainly erred by presuming that his gu idelines sentencing range was reasonable and by relying upon this p resu m ption to deny his request f or a sentence below the guidelines range based on cultural assimilation. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41061 Document: 00512314813 Page: 1 Date Filed: 07/19/2013No. 12-41061

We consider Rosas-Vill a r r eal’s claim under the plain e rror standard because i t was not presented to the district c ourt. See United S tates v. K ing , 541 F.3d 1143, 1144 ( 5th Cir. 2008). To meet this standard, Rosas-Villarreal must show an error that is c lear or obvious and that affects his s ubstantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). Even if this showing is made,

we w ill exercise our discretion t o correct the e rror only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted). The Supreme Court has explained that “the sentencing court does not enjoy the b enefit of a l e g a l presumption that the Guidelines sentence should apply.” Rita v. United States , 551 U.S. 338, 351 (2007). Rather, a district court must impose “a sentence sufficient, but not greater than necess a r y , t o comply with the purposes” of 1 8 U.S.C. § 3 553(a)(2). 18 U

. S.C. § 3553(a). The guidelines range serves as a “starting point” and “initial b enchmark” prior to consideration of the § 3553(a) factors, and a sentencing court can n o t require exceptional circumstances to be present to justify imposing a sentence that is outside of the guidelines range. Gall v. United States , 552 U.S. 38, 49-50 (2007). In this case, even assuming arguendo that the district co u r t ’ s l anguage indicates an erroneous application of this standard, we do not find plain error. The district c ourt twice referred to the guidelines range a s “ a d v i s ory.” In d e nyi n g R o s a s - Vi l l a rr e a l’s argument for a cultur al a s s i m i l a t i o n - b a s e d d o w n w a r d variance, the district c o u rt c it e d th e defendant’s “extensive criminal history”; the fact that he was “at one point

. . . given legal status” i n t he U n ited States before he “lost that all on [his] own”; and his f luency i n Spanish and English increasing his ability to obtain employment in Mexico. The d istrict court’s conclusion that

a cultural assimilation variance was not “justified or w arranted i n this case”
was, on plain error review, based on a suffic iently individualized and factspecific assessment, see Gall , 552 U.S. at 50, and Rosas-Villarreal has not shown

a r easonable probability that he would have r e c e i v e d a lesser sentence in the
2 Case: 12-41061 Document: 00512314813 Page: 2 Date Filed: 07/19/2013No. 12-41061

absence of any presumption of reasonableness. See United States v. Davis , 602 F.3d 643, 648–49 (5th C ir. 2010). The judgment of the district court is therefore AFFIRMED.

3 Case: 12-41061 Document: 00512314813 Page: 3 Date Filed: 07/19/2013