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

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,

ar guin g th at th e 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 w a s m ore appropriate. Specifically, he argues that his offense was not violent and that it involved only 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 July 2, 20 12 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: 11-51060 Document: 00511906893 Page: 1 Date Filed: 07/02/2012No. 11-51060

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

a good worker in the United States and that h e had only one prior conviction. Additionally, P a l o m o-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 argu ments fail even under the abuse-of-discretion standard of review. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 200 8). The substantive reasonableness of a sente n c e i s 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 s e nt e nce but foun d 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) f

actors, on a whole, justify the extent of the variance.” Ga l l , 552 U.S. at 51. Although Palomo-Delgadillo only had one prior felony for which he received a 92-day sentence, the district ju dge rejected Palomo-Delgadillo’s minimalization of his prior conviction for committing lewd acts on a child under th e age of fourteen. The court concluded that a 36-month sentenc e w a s appropriate to reflect the sentencing factors of § 3553(a) and to “ret a i n the seriousness of that one conviction.” Considering the totality of the circums t a n ces, 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