IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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-three-month sentence imposed

United States Court of Appeals

Fifth Circuit

F I L E D

April 25, 2012

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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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 reasonableness. 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.

Following United States v. Booker, 543 U.S. 220 (2005), we review sentences for reasonableness in light of those sentencing factors. Gall v. United

States, 552 U.S. 38, 51 (2007). While sentences within the guidelines do not

require a “lengthy explanation,” more is required if the parties present 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 presumption 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 that the court had

applied a presumption of reasonableness and had required extraordinary circumstances 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 othersSSnot

extraordinary, not unusual,” it also stated that it considered the § 3553(a) factors

and determined that a sentence within the 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, the district court

committed a clear or obvious procedural error, see Puckett, 556 U.S. at 135,

Jaimes-Alvarez has made no showing that the error affected his substantial

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 imposes a sentence

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 applies 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 asserts that any presumption that the sentence is reasonable is rebutted by his family circumstances, the excessiveness of the sixteenlevel enhancement, and over representation of his criminal history. JaimesAlvarez has not shown that 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 judgment in balancing sentencing factors. See United States v. Cooks, 589

F.3d 173, 186 (5th Cir. 2009). 

AFFIRMED.

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