IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20809

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ISRAEL RIOS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-98-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Israel Rios pleaded guilty to illegal reentry following deportation after

conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2). The

district court imposed a within-guidelines sentence of 56 months, which reflected

a one-month credit for the time Rios spent in the custody of Immigration and

Customs Enforcement (ICE). Rios appeals the district court’s denial of his

motion for downward departure based on credit for time served in state custody

after his parole was revoked. 

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2011

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. 10-20809

Following United States v. Booker, 543 U.S. 220 (2005), we review

sentences for procedural error and substantive reasonableness in light of the

sentencing factors in 18 U.S.C. § 3553(a) under an abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 51 (2007). 

Rios first argues that the district court erred when it unreasonably denied

his request for a downward departure based on time served in state custody. 

Because Rios preserved this claim of error in the district court, we apply the

abuse-of-discretion standard. See Russell v. Plano Bank & Trust, 130 F.3d 715,

720 (5th Cir.1997) (“A party may be excused from the requirement of making a

specific objection only where the party’s position previously has been made clear

to the trial judge and it is plain that a further objection would be unavailing.”) 

Under United States v. Barrera-Saucedo, 385F.3d 533, 537 (5th Cir. 2004),

“it is permissible for a sentencing court to grant a downward departure to an

illegal alien for all or part of time served in state custody from the time

immigration authorities locate the defendant until he is taken into federal

custody.” “This Court has jurisdiction to review a district court’s refusal to grant

a downward departure from the Guidelines only if the refusal was based on an

error of law.” Barrera-Saucedo, 385 F.3d at 535 (internal citation omitted). “A

refusal to grant a downward departure is a violation of law only if the court

mistakenly assumes that it lacks authority to depart.” United States v. Cooper,

274 F.3d 230, 248 (5th Cir. 2001) (internal quotation and citation omitted). Rios

does not argue that the district court believed that it was not authorized to

depart. Furthermore, there is no indication in the record that the district court

was under the mistaken impression that it could not depart. The court

specifically addressed the issue of a departure based on credit for time served

but concluded that it was not warranted in this case. Thus, this court lacks

jurisdiction to review the district court’s denial of Rios’s downward departure

motion. See Barrera-Saucedo, 385 F.3d. at 535.

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Rios also argues that the district court erred when it failed to explain why

it denied his request for a downward departure based on credit for time served. 

Because Rios failed to present this argument in the district court, we review for

plain error. See Mondragon-Santiago, 564 F.3d at 361. To show plain error, the

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

substantial rights. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429

(2009). If the appellant 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.

To the extent Rios is complaining about the district court’s denial of his

downward departure motion, this court is without jurisdiction to review that

denial. See Barrera-Saucedo, 385 F.3d at 535. To the extent Rios is complaining

that the district court failed to adequately explain the sentence it imposed, his

argument is without merit. The record in the instant case reflects that the

district court imposed a within-guidelines sentence. “[W]hen a judge decides

simply to apply the Guidelines to a particular case, doing so will not necessarily

require lengthy explanation.” Rita v. United States, 551 U.S. 338, 347 (2007) . 

However, “more than a brief statement may be required when a district court is

presented with nonfrivolous arguments for a sentence outside the Guidelines.” 

United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (internal citation

omitted). On the other hand, a district court’s explanation is sufficient where

the record reflects that the district court listened to and considered the

defendant’s arguments for a below-guidelines sentence and then indicated that

a sentence within the guidelines range was appropriate. See Rodriguez, 523

F.3d at 525-26. 

In the instant case, the district court did not plainly err with respect to the

sufficiency of its explanation for the sentence it imposed. The record reflects

that the district court considered Rios’s argument that he receive credit for time

served. The court also listened to the probation officer’s response, concluding

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that Rios should receive a one-month credit for the time he spent in ICE custody.

The record also reflects that the district court listened to the parties’ arguments

regarding a downward departure based on either cultural assimilation and

criminal history. Finally, in imposing the sentence, the district court noted that

a within-guidelines sentence would satisfy the factors under 18 U.S.C. § 3553(a).

Thus, the record in the instant case reflects that the district court listened to and

considered Rios’s arguments for a downward departure but simply found the

circumstances insufficient to warrant a lesser sentence in light of the Guidelines

and the § 3553(a) factors. See Rita, 551 U.S. at 358; Rodriguez, 523 F.3d at

525-26. The court’s failure to give additional reasons does not constitute plain

error. In addition, to show that the purported failure to give adequate reasons

affected his substantial rights, Rios must show that it affected the outcome, i.e.,

that further explanation would have resulted in a lesser sentence. See

Mondragon-Santiago, 564 F.3d at 364-65. He makes no such showing. 

AFFIRMED.

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