### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 f o l l o wing deportation after conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2). The di s trict court imposed a within-guidelines sentence of 56 months, which ref l ect e d

a one-month credit for the time Rios spent in th e c u s tody of Immigration and Customs Enf

o r cement (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court’s denial of his motion for downward departure based on credit for time served in state custody after his parole was revoked. 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 Octob er 21 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court 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: 10-20809 Document: 00511639981 Page: 1 Date Filed: 10/21/2011No. 10-20809

Following United States v. Booker , 543 U.S. 220 (2005), w e r e view sentences for procedural error and substantive r e a sonableness 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 r e quest for a downward departure based on time served in state custody. Because Rios preserved this claim of error in the district court , w e a p p ly 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 , 3 8 5 F

. 3 d 5 3 3 , 5 3 7 ( 5 th C ir. 2004), “it is permissible for a s e ntencing 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 h e i s 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 dep a rt u r e i s 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 d o e s n o t argue that the district court believed that it was not authorized t o depart. Furthermore, there is no indication in the record that the district court

was under the mistak e n i m pression that it could not depart. The court specifically addressed the issue of a departure b a sed on credit for time served b u t concluded that it was not warranted in this case. Thus, this court lacks jurisdiction to review the district cou rt ’ 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 c o mplaining about the district court’s denial of his downward departure motion, this court is without jurisdictio n t o r e view 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 re c o r d i n 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

o m it t e d)

. 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 s entence within the guidelines range was appropriate. See Rodriguez , 5 2 3 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 sen t e n c e it imposed. The record reflects that the district court considered Rios’s argument that he receive credit for time served. The court also liste n ed 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 si m p ly f o und the circumstances insufficient to warrant a lesser sentence in light of the Guidelines and the § 3553( a) f

a c tors. 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 f u rth e r explanation would have resulted in a lesser sentence. See Mondragon-Santiago , 564 F.3d at 364-65. He makes no s uch showing. AFFIRMED.

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