### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-40381 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus MARIO JAIMES-ALVAREZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 7:11-CR-43-1

Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM: *

Mario Jaimes-Alvarez appeals the thirty-th r ee-month sentence imposed 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 April 25 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40381 Document: 00511835007 Page: 1 Date Filed: 04/25/2012No. 11-40381

on his guilty-plea conviction of being unlawfully found in the United States after deportation. See 8 U.S.C. § 1326. He challenges the procedural reasonableness of the sentence, arguing that the district court failed to provide adequate reasons and that the court’s comments at sentencing reflected that it applied a presumption of rea s o n ableness. He further challenges the substantive reasonableness of the sentence, contending that the sentence is greater than necessary in light of the 18 U.S.C. § 3553(a) sentencing factors. F ollowing United States v. Booker , 543 U.S. 220 (2005), we review se n tences for reasonableness i n light of those sentencing factors. Gall v. United States , 552 U.S. 38, 51 (2007). While sentences within the gu i d elines do not require a “lengthy explanation,” more is required if the parties p r e s e n t legitimate reasons to depart from the guidelines. Rita v. United States , 551 U.S. 338, 356-57 (2007). The record reflects that the reasons are adequate to allow meaningful appellate review, see Gall , 552 U.S. at 50, and, although brief, the reasons are sufficient under Rita , 551 U.S. at 357. Because Jaimes-Alvarez did not argue in the district that the court was, in essence, applying a presumpti o n of reasonableness to a guideline sentence, review of that issue is for plain error. See Puckett v. United States , 556 U.S. 129, 135 (2009); United States v. King , 541 F.3d 1143, 1144 (5th Cir. 2008). JaimesAlvarez argues that the court’s comments at sentencing are similar to those in United States v. Carbajal-Alvarado , 275 F. App’x 427, 427 (5th Cir. 2008), in which we remanded for resentencing after determining tha t the court had

a p p li e d a p r e s u m p ti o n of reasonableness and had requir e d e xtr a o r di n ary c irc u m stances to impose a sentence outside the guideline range. Although at sentencing the court made comments similar to those at issue in Carbajal-Alvarado by stating that it did not “see anything here that compels

a variance” and further stating that the “case [was] very typical of others

SSnot extraordinary, not u nu s u al ,” it also stated that it considered the § 3553(a) factors and determined that a sentence withi n th e guidelines satisfied those factors. See
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Gall , 552 U.S. at 49-50 (observing that district courts should consider the guideline range as “the starting point” but should then consider all of the § 3553(a) factors). Carbajal-Alvarado also is distinguishable because there the defendant preserved the error for appellate review. Even if, arguendo, th e d istrict court committed a clear or obvious procedural e r ror, see Puckett , 556 U.S. at 135, Jaimes-Alvarez has made no showing that the error affected hi s s u b stantial rights. See King , 541 F.3d at 145; United States v. Davis , 602 F.3d 643, 647 (5th Cir. 2010). We review the substantive reasonableness of a sentence under an abuseof-discretion standard. Gall , 552 U.S. at 51. If a court i m p o s e s a s e ntence within a properly calculated guidelines range, we apply a rebuttable presumption that the sentence is reasonable. United States v. Newson , 515 F.3d 374, 379 (5th Cir. 2008). Jaimes concedes that the presumption appli e s but argues, for
purposes of preserving the issue for possible further review, that the presumption should not apply to sentences calculated under U.S.S.G. § 2L1.2. As he concedes, the argument is foreclosed by United States v. Mondragon-Santiago , 564 F.3d 357, 366-67 (5th Cir. 2009). Jaimes-Alvarez also a s s e rt s th at a ny p r e s u m p tion that the sentence is reasonable is rebutted by his family circumstances, the excessive n ess of the sixteenlevel enhancement, and over representation of his criminal h i s t o r y. JaimesAlvarez has not s h o w n t h a t the sentence failed to account for a factor that should have received significant weight, that the court gave significant weight to an irrelevant or improper factor, or that the sentence represented a clear error of j u dgment in balancing sentencing factors. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). AFFIRMED.

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