### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 10575 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
PEDRO MUNOZ , Defendant

- Appellant

Consolidated with No. 18

- 10583
UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. PEDRO MUNOZ RUIZ, also known as Pedro Carrillo, also known as Luis A. Ruiz, also known as Luis Alberto Ruiz, also known as Pedro Ruiz, also known as Pedro Martinez,

Defendant

- Appellant

Appeal s from the United States District Court for the Northern District of Texas USDC No. 4:10

- CR

- 61 USDC No. 4:17

- CR

- 230 United States Court of Appeals Fifth Circuit 

### FILED June 12, 2019 Lyle W. Cayce Clerk Case: 18-10575 Document: 00514992755 Page: 1 Date Filed: 06/12/2019No. 18

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2 Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges. PER CURIAM: * Pedro Munoz appeals the 151

- month sentence imposed on his guilty plea conviction for possessin g with i ntent to distribute a controlled substance

. See 21 U.S.C. § 841(a)(1), (b)(1)(B). Additionally, he appeals the 24

- month revocation sentence imposed on the related revocation of his term of supervised release on an earlier conviction for illegal reentry. See 18 U.S.C. § 3583(e). The district court ordered that these sentences be served consecutively. We affirm both sentences. Ordinarily, we review a n original sentence for reasonableness in light of the sentencing factors of 18 U.S.C. § 3553(a). See Gall v. United States , 552 U.S. 38, 46, 49

- 50 (2007). In reviewing for reasonableness , we “ merely ask [ ] whether the trial court abused its discretion.” Rita v. United States , 551 U.S. 338, 351 (2007). We ordinarily review a revocation sentence to deter mine if it is plainly unreasonable in light of certain sentencing factors set forth in § 3553(a), asking whether the district court abused its discretion

. See United States v. Miller , 634 F.3d 841, 843

- 44 (5th Cir. 2011). Under the bifurcated review pro cess adopted in Gall , we f irst examine whether the district court committed procedural error

. See 552 U.S. at 51. We employ a bifurcated process in the revocation context as well, applying the revocation abuse

- of

- discretion standard in analyzing the subs tantive reasonableness of a revocation sentence after examining for procedural error

. See Miller , 634 F.3d at 84 2

- 4 3

. But r eview of any claim i s for plain error if “the defendant has the opportunity to seek vindication of [his] rights in district

* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. Case: 18-10575 Document: 00514992755 Page: 2 Date Filed: 06/12/2019No. 18

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3 court” but fails to avail himself of that opportunity

. Puckett v. United States , 556 U.S. 129, 136 (2009)

. The parties disagree about the standard of review applicable to the claims that the district court did not consider Munoz’s arguments for downward variances and for concurrent sentences and did not adequately explain its sentences and consequently that the sentences are procedurally unreasonable

. Munoz did not preserve his procedural ar guments. See, e.g., United States v. Rouland , 726 F.3d 728, 73 2 (5th Cir. 2013). However, he has shown no error at all and thus no plain error. See United States v. Teuschler , 689 F.3d 397, 400 (5th Cir. 2012). W e need not decide whether plain error

ap plies to his challenge to substantive reasonableness, as Munoz does not prevail under the ordinary standard. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). A sentencing judge need not state “explicitly that he

. . . heard and conside red” every argument the defendant made. Rita , 551 U.S. at 359. The records in these consolidated cases make clear that the “ sentencing judge listened to each argument .” Id. at 358. The record shows also that the district court considered the presentenc e report’s ample evidence of Munoz’s extensive criminal history. Additionally, the district court remarked that its sentences were appropriate in light of applicable factors listed in 18 U.S.C. § 3553(a). Those remarks constituted an adequate explanation of the sentences in these

cases and of the reasons for rejecting, knowingly but implicitly, any downward
variance. See Rita , 551 U.S. at 345; see also United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005)

. With respect to substantive reasonableness, a within

- guidelines sentence “is presumptively reasonable.” United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). Also, a presumption of substantive reasonableness Case: 18-10575 Document: 00514992755 Page: 3 Date Filed: 06/12/2019No. 18

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4 attaches to a revocation sentence within the policy statement advisory range. United States v. Lopez

- Velasquez , 526 F.3d 804, 809 (5th Cir. 2008). Munoz’s suggestion that we reweigh the § 3553(a) factors is unavailing. See Gall , 552 U.S. at 51 . In light of the district court’s thorough re view of the record s and recitation of the reasons justifying the sentences, Munoz offers no adequate bas i s for forgoing application of th e presumption of reasonableness that attaches to each and for supplanting each with a sentence of this court’s choice. See id. Nor does Munoz succeed in overcoming his failure to show that either sentence is unreasonable in its own right by attacking the cumulative sentence. The district court’s decision to order that the sentence s be served consecutively was authorize d by statute and recommended by the Sentencing Guidelines. See 18 U.S.C. § 3584 (a) ; U.S.S.G. § 7B1.3(f) & comment. (n.4), p.s. Given the deference owed the sentencing court, we see no reason to disturb the district court’s exercise of its discretion. AFFIRMED. Case: 18-10575 Document: 00514992755 Page: 4 Date Filed: 06/12/2019