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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41005

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

REFUGIO JAVIER DE LA GARZA-VALLES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:07-CR-456-1

Before WIENER, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Refugio Javier De La Garza-Valles challenges the sentence imposed

following his guilty plea conviction of being an alien unlawfully found in the

United States after deportation, having been previously convicted of an

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b). De La Garza argues

that his sentence is procedurally unreasonable because the district court failed

to permit counsel to argue for an appropriate sentence and failed to provide

sufficient reasons. He also argues that his sentence is substantively

United States Court of Appeals

Fifth Circuit

F I L E D

July 1, 2009

Charles R. Fulbruge III

Clerk
No. 07-41005

2

unreasonable in light of Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007),

and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007). He further

contends that his sentence is substantively unreasonable because U.S.S.G.

§ 2L1.2(b)(1)(A)(i) (2006) is flawed as it was not based on empirical data.

De La Garza did not preserve these objections in the district court. Review

is therefore for plain error. See United States v. Mondragon-Santiago, 564 F.3d

357 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F. 3d 337, 339 (5th

Cir.), cert. denied, 129 S. Ct. 328 (2008). De La Garza “must demonstrate

(1) error, (2) that is clear or obvious, and (3) that affects substantial rights.”

Campos-Maldonado, 531 F. 3d at 339. “If these conditions are met, this court

may exercise its discretion to correct the error if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

The district court provided defense counsel ample opportunity to address

the arguments that counsel deemed appropriate. Also, the formalistic procedure

suggested by De La Garza’s arguments is not prescribed by the authorities upon

which De La Garza relies. See FED. R. CRIM. P. 32(i)(4)(A)(i); Rita v. United

States, 551 U.S. 338, 127 S. Ct. 2456 (2007); and Gall, 128 S. Ct. at 596.

Additionally, nothing in the record indicates that De La Garza’s sentence would

have been different if the court had provided more explanation of its chosen

sentence. See Mondragon-Santiago, 564 F.3d at 363-64. De La Garza’s

argument that his sentence is procedurally unreasonable thus does not provide

a basis for relief.

De La Garza’s argument regarding Gall and Kimbrough does not establish

that his sentence is substantively unreasonable, as the record does not suggest

that the district court wished to impose a different sentence but felt constrained

by this court’s precedent. See Campos-Maldonado, 531 F.3d at 338-39. Finally,

this court has rejected De La Garza’s argument that § 2L1.2 is flawed. See id.

The judgment of the district court is AFFIRMED.