IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50782

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PABLO HOFFMAN-PORTILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:10-CR-511-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Pablo Hoffman-Portillo (Hoffman) appeals his concurrent 77-month

sentences imposed for his guilty plea convictions for importation of marijuana

and possession with intent to distribute marijuana. Hoffman challenges the

reasonableness of his sentence, arguing that it is greater than necessary to serve

the purpose of 18 U.S.C. § 3553(a).

Generally, this court reviews a sentence for reasonableness. Gall v. United

States, 552 U.S. 38, 51 (2007). A sentence within the properly calculated

United States Court of Appeals

Fifth Circuit

F I L E D

April 29, 2011

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: 10-50782 Document: 00511461370 Page: 1 Date Filed: 04/29/2011
No. 10-50782

guidelines range is entitled to a presumption of reasonableness on appeal. Rita

v. United States, 551 U.S. 338, 347 (2007). Hoffman acknowledges that he did

not object to the reasonableness of his sentence after it was imposed and that,

under this circuit’s precedent, review is for plain error. See United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, Hoffman is preserving

his objection to the application of the plain error standard for possible Supreme

Court review.

To show reversible plain error, Hoffman must show a clear or obvious error

that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,

1429 (2009). If Hoffman makes such a showing, this court has the discretion to

correct the error but only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id. In determining Hoffman’s sentence, the

district court considered Hoffman’s illegal reentry into the United States to

transport drugs although he had received two substantial sentences in this

country for his prior drug convictions. The district court considered counsel’s

arguments and Hoffman’s statement that he had committed the instant offense

because of the threats made by drug dealers against his family living in Mexico.

The district court pointed out that it was Hoffman’s prior involvement in the

drug business which linked him to the individuals who had threatened his

family.

The record demonstrates that the district court considered the 18 U.S.C.

§ 3553(a) factors and Hoffman’s mitigating arguments at sentencing before

determining that a bottom-of-the guidelines sentence was an appropriate

sentence. Hoffman has failed to rebut the presumption of reasonableness that

this court applies to his guidelines sentence or to demonstrate plain error. Rita,

551 U.S. at 347; Puckett, 129 S. Ct. at 1429.

Insofar as Hoffman is arguing that the district court erred in denying his

request for a downward departure or variance, there is no indication in the

record that the district court believed that it lacked the authority to do so.

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No. 10-50782

Therefore, the court lacks jurisdiction to review this issue. See United States v.

Lucas, 516 F.3d 316, 350-51 (5th Cir. 2008).

The sentences are AFFIRMED.

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Case: 10-50782 Document: 00511461370 Page: 3 Date Filed: 04/29/2011