IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41146

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ESTEBAN RODRIGUEZ-LOPEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-1451-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Defendant-Appellant Esteban Rodriguez-Lopez appeals his 77-month

sentence following his guilty plea conviction for illegal reentry following previous

deportation. Rodriguez-Lopez asserts that the district court plainly erred in

assessing him two criminal history points under U.S.S.G. § 4A1.1(d) because he

did not commit the instant offense “while under a criminal justice sentence.” He

insists that the error affected his substantial rights because without the two

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2010

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.

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No. 09-41146

criminal history points he would have faced a guideline imprisonment range of

63 to 78 months, instead of 77 to 96 months.

To show plain error, Rodriguez-Lopez must show a forfeited error that is

clear or obvious and that affects his substantial rights. Puckett v. United States,

129 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the

discretion to correct the error but only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

At the time Rodriguez-Lopez reentered the United States on June 10,

2009, there was no evidence that he was under a “criminal justice sentence”

within the meaning of § 4A1.1(d). Thus, the district court erred in applying the

two criminal history points, and the error is obvious. See Puckett, 129 St. at

1429. There is nothing in the record, however, to indicate “a reasonable

probability” that the district court would resentence Rodriguez-Lopez to a lower

sentence. See United States v. Jones, 596 F.3d 273, 277 (5th Cir. 2010), petition

for cert. filed (May 5, 2010) (No. 09-10607). In fact, the district court denied

Rodriguez-Lopez’s request for a below-guidelines sentence. Accordingly,

Rodriguez-Lopez has failed to show that his substantial rights were affected by

the district court’s error. See Jones, 596 F.3d at 277; Puckett, 129 S. Ct. at 1429.

Rodriguez-Lopez also contends that (1) the district court committed

significant procedural error in its consideration and weighing of the 18 U.S.C.

§ 3553(a) factors, and (2) the sentence imposed was substantively unreasonable.

Following United States v. Booker, 543 U.S. 220 (2005), we review

sentences for reasonableness in light of the sentencing factors in § 3553(a).

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall

v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the

sentence imposed by the district court. United States v. Delgado-Martinez, 564

F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court

committed a significant procedural error. Gall, 552 U.S. at 51. If there is no

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such error, we then review the substantive reasonableness of the sentence

imposed for abuse of discretion. Id.

Here, after hearing arguments from both parties, the district court briefly

but amply stated its reasons for choosing a within-guidelines sentence. See

United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008); Rita v. United

States, 551 U.S. 338, 356-59 (2007). Rodriguez-Lopez is essentially asking us to

substitute his assessment of the appropriate sentence for that of the district

court, which we will not do. See Gall, 552 U.S. at 51. He has not established

that the district court abused its discretion in imposing his sentence, and he has

not rebutted the presumption of reasonableness that attaches to his withinguidelines sentence. See id.; United States v. Campos-Maldonado, 531 F.3d 337,

338 (5th Cir. 2008). Rodriguez-Lopez has failed to show that the sentence is

unreasonable. See Gall, 552 U.S. at 51; Rita, 551 U.S. at 346-47. The sentence

is thus AFFIRMED.

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