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should not be published and is not precedent except under the limited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. 08-40957

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE GUADALUPE MACHADO-SARMIENTO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-981-2

Before KING, STEWART and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Guadalupe Machado-Sarmiento (Machado) appeals the 80-month

sentence he received following his conviction by jury of conspiracy to import

more than 50 kilograms of marijuana, in violation of 21 U.S.C. § 963, importing

more than 50 kilograms of marijuana, in violation of 21 U.S.C. § 952(a),

conspiracy to possess with the intent to distribute more than 50 kilograms of

marijuana, in violation of 21 U.S.C. § 846, and possession with the intent to

United States Court of Appeals

Fifth Circuit

F I L E D

November 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-40957

2

distribute more than 50 kilograms of marijuana, in violation of 21 U.S.C.

§ 841(a). For the first time on appeal, he argues that the district court erred in

assessing an aggravating-role enhancement and that the sentence imposed was

unreasonable.

Machado did not receive an aggravating-role enhancement. Accordingly,

his claim that the district court erred in assessing such an enhancement is

factually frivolous. 

Machado’s newly raised challenge to the reasonableness of his sentence is

reviewed for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92

(5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). To demonstrate plain error,

Machado must show a forfeited error that is clear or obvious and that affects his

substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he

makes such a showing, this court has the discretion to correct the error but only

if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

Machado has not demonstrated any error, plain or otherwise. Contrary

to his assertion, the sentencing transcript reflects that the district court

considered the 18 U.S.C. § 3553(a) factors and provided an explanation for its

sentence. Moreover, because the court imposed sentence within the correctly

calculated guidelines range, this court will infer proper consideration of the

§ 3553(a) factors. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

Additionally, the within-guidelines sentence imposed is presumed reasonable.

See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Machado’s new

claims that the sentence is “grossly disproportionate to [his] conduct” and “not

reflective of sentences for other defendants engaged in similar conduct” are

wholly conclusional. To the extent that his arguments are based on the

erroneous assertion that he received an aggravating-role enhancement, they

arguments are factually flawed and without merit. 
No. 08-40957

3

The district court’s judgment is AFFIRMED. The Government’s motion

for summary affirmance is DENIED as moot.