IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 one count of being found in the

United States after previous deportation and was sentenced to serve 46 months

in prison. Rosas-Villarreal argues that the district court plainly erred by

presuming that his guidelines sentencing range was reasonable and by relying

upon this presumption to deny his request for a sentence below the guidelines

range based on cultural assimilation.

United States Court of Appeals

Fifth Circuit

F I L E D

July 19, 2013

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.

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No. 12-41061

We consider Rosas-Villarreal’s claim under the plain error standard

because it was not presented to the district court. See United States v. King, 541

F.3d 1143, 1144 (5th Cir. 2008). To meet this standard, Rosas-Villarreal must

show an error that is clear or obvious and that affects his substantial rights. See

Puckett v. United States, 556 U.S. 129, 135 (2009). Even if this showing is made,

we will exercise our discretion to correct the error 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 benefit of a legal 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 necessary, to comply

with the purposes” of 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a). The guidelines

range serves as a “starting point” and “initial benchmark” prior to consideration

of the § 3553(a) factors, and a sentencing court cannot 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 court’s language

indicates an erroneous application of this standard, we do not find plain error. 

The district court twice referred to the guidelines range as “advisory.” In

denying Rosas-Villarreal’s argument for a cultural assimilation-based downward

variance, the district court cited the defendant’s “extensive criminal history”; the

fact that he was “at one point . . . given legal status” in the United States before

he “lost that all on [his] own”; and his fluency in Spanish and English increasing

his ability to obtain employment in Mexico. The district court’s conclusion that

a cultural assimilation variance was not “justified or warranted in this case”

was, on plain error review, based on a sufficiently individualized and factspecific assessment, see Gall, 552 U.S. at 50, and Rosas-Villarreal has not shown

a reasonable probability that he would have received a lesser sentence in the

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No. 12-41061

absence of any presumption of reasonableness. See United States v. Davis, 602

F.3d 643, 648–49 (5th Cir. 2010). The judgment of the district court is therefore

AFFIRMED. 

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