### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40423 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. GALDINO SIGALA GARCIA, also known as Pelon, Defendant-Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:10-CR-123-4

Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Galdino Sigala Garcia appeals his c o nviction a n d 135-month term of imprisonment i mposed fo l l owing his guilty plea conviction of conspiracy to possess with intent to distribute a nd to distribute 5 kilograms or m ore of cocaine. Sigala Garcia argues that there was not a sufficient factual basis for his guilty plea or to support the quantity of cocaine for which he was held accountable at sentencing. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 8, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Because S igala Garcia did n ot object in the district court to the sufficiency of the factual basis for hi s p l e a , r e v i e w is for plain e rror. See United States v. Oliver , 630 F.3d 397, 415 (5th C i r . 2 0 1 1). In determining whether there has been plain error, the court may consider the entire record in assessing whether there i s an adequate factual basis for a g u ilty p l ea, including the p resentence report (PSR). Id. at 412; U nited States v. H

ildenbrand , 527 F.3d 466, 475 (5th Cir. 2008). The district court was required to determine that as a matter of law, the record reflected S i gala Garcia’s participation in the drug-trafficking conspiracy tha t i n v o lv e d as a whole more than 5 kilograms of cocaine. See United S tates v. Turner , 319 F.3d 716, 722-23 (5th Cir. 2 003) ; U nited States v. Marek , 238 F.3d 310, 314 (5th Cir. 2001) (en banc). During the rearraignment, the district court ascertained Sigala Garcia’s acknowledgment that he e ntered into an agreement with co-conspirator Victor Lopez to assist him i n obtaining 10 kilograms of cocaine f or distribution; that he obtained a cocaine source; that he and the other men developed a plan to have the c ocaine delivered to the b uyer, who was in f act the undercover a g e n t ; a n d that Sigala Garcia was to receive $1500 for his p art in the criminal activity. His admissions were sup p o rted by the t estimony of the undercover agent and the findings in the P S R

. A r e v i e w of the record a s a whole shows that there was sufficient factual evidence presented to support the guilty plea and, thus, Sigala Garcia failed to show error, plain or otherwise, with respect to the validity of his guilty plea. Citing to the reaso n s h e r a i s e d i n t h e district court in seeking a downward variance from the sentencing guideline r ange, Sigala Garcia argues that h i s 1 3 5-month s entence of imprisonment is greater than necessary to achieve the purposes of 1 8 U.S.C. § 355 3 ( a) a nd is thus unreasonable. Sigala Garcia c o n t ends that the district court failed to consider the mitigating factor that his role in the offense had little r e l ationship to the cocaine recovered on June 5 , 2010. He also argues that the dist r i c t c o u rt should h ave avoided

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unwarranted disparities at sentencing, p ointing out that his codefendant, Cardona-Palacios, received a 35-month sentence of imprisonment. Although Sigala Garcia f ailed to object to the reaso n ab leness of his sentence below, h i s r e l iance on the same arguments that he presented to the district court t o support his request for a downward variance allows the court to find that he has preserved the reasonableness issue for appeal and to apply the abuse of discretion standard of review. See United States v. Gomez-Herrera , 523 F

. 3 d 5 5 4 , 565 n.6 ( 5th Cir. 2008). A sentence imposed within a prope r l y calculated guidelines range is accorded a p resumption of reasonableness and is rebutted only if the district court fails to consider a s ignificant f a c t o r , gives weight to an irrelevant factor, or c learly errs in balancing the sentencing factors. United States v. Cooks , 589 F.3d 173, 186 ( 5th Cir. 2 009) ; United S t a tes v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). Sigala Garcia’s argument that there was n o e vi d e n c e linking him to the drug sale w as rebutted by his own admissions, the information in the P SR, and the t estimony of the u ndercover agent at the sentencing hearing. Insofar as he argues that there was an unwarranted disparity i n sentencing, h e did not rebut the evidence that h is codefendants immediately cooperated with the authorities and received the benefit o f the safety valve provision while he pleaded guilty on the day his trial was scheduled a nd was precluded from the applicati o n o f t he safety valve based on his prior convictions. Sigala Garcia has not rebutted the presumption o f reasonableness afforded his guideline sentence. See Cooks , 589 F.3d at 186. The district c ourt d i d n o t abuse its discretion in i mposing the guidelines sentence. Sigala Garcia’s conviction and sentence are AFFIRMED.

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