IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51060

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE PALOMO-DELGADILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:11-CR-405-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jose Palomo-Delgadillo appeals the 36-month below-guidelines sentence

imposed following his conviction for illegal reentry after deportation. PalomoDelgadillo challenges only the substantive reasonableness of his sentence,

arguing thatthe sentence is greater than necessary to accomplish the sentencing

objectives of 18 U.S.C. § 3553(a). In light of his personal circumstances and

characteristics, he contends that a 24-month sentence was more appropriate. 

Specifically, he argues that his offense was not violent and that it involved only

United States Court of Appeals

Fifth Circuit

F I L E D

July 2, 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.

Case: 11-51060 Document: 00511906893 Page: 1 Date Filed: 07/02/2012
No. 11-51060

a trespass across an international border. He further states that he had been

a good worker in the United States and that he had only one prior conviction. 

Additionally, Palomo-Delgadillo argues that the guidelines overstated the

significance of his prior conviction.

Palomo-Delgadillo concedes that he failed to object to his sentence after it

was imposed and that this court’s review is limited to plain error. Nevertheless,

he seeks to preserve for further review his contention that an objection after the

imposition of sentence is not required for abuse-of-discretion review. This court

need not determine whether plain error review is appropriate because PalomoDelgadillo’s arguments fail even under the abuse-of-discretion standard of

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

The substantive reasonableness of a sentence is reviewed under an

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The

district court listened to Palomo-Delgadillo’s arguments for a lesser sentence but

found that a 36-month sentence, which was below the applicable guidelines

range, was appropriate. We afford “due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall,

552 U.S. at 51. Although Palomo-Delgadillo only had one prior felony for which

he received a 92-day sentence, the district judge rejected Palomo-Delgadillo’s

minimalization of his prior conviction for committing lewd acts on a child under

the age of fourteen. The court concluded that a 36-month sentence was

appropriate to reflect the sentencing factors of § 3553(a) and to “retain the

seriousness of that one conviction.” Considering the totality of the

circumstances, he has not shown sufficient reason for this court to disturb his

below-guidelines sentence. See United States v. Conn, 657 F.3d 280, 286 (5th

Cir. 2011).

Accordingly, the judgment of the district court is AFFIRMED.

2

Case: 11-51060 Document: 00511906893 Page: 2 Date Filed: 07/02/2012