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should not be published and is not precedent except under the limited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. 06-41394

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

AURELIO LARA ZAPATA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-48-1

Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Aurelio Lara Zapata appeals the sentence imposed following his guilty

plea conviction for possession of child pornography, in violation of 18 U.S.C.

§§ 2252A(a)(5)(B), (b)(2), and 2256. Zapata was sentenced within his advisory

sentencing guidelines range to a 78-month term of imprisonment.

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

district court’s sentencing decisions for reasonableness in light of the sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

June 15, 2009

Charles R. Fulbruge III

Clerk
No. 06-41394

2

factors in 18 U.S.C. § 3553(a). Gall v. United States, 128 S. Ct. 586, 596-97

(2007). First, we consider whether the sentence imposed is procedurally sound.

Id. at 597. Thereafter, we consider whether the sentence is substantively

reasonable, using an abuse-of-discretion standard. Id. A sentence imposed

within a properly calculated guideline range is entitled to a rebuttable

presumption of reasonableness. Rita v. United States, 127 S. Ct. 2456, 2462

(2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

Zapata argues that this court should summarily vacate his sentence and

remand the case to the district court for reconsideration in light of the Supreme

Court’s decisions in Gall, 128 S. Ct. at 586, Kimbrough v. United States, 128

S. Ct. 558 (2007), and Rita, 127 S. Ct. at 2456. Zapata contends that those cases,

which were issued after his sentencing, abrogated the rationale of previous Fifth

Circuit decisions by broadening the district court’s discretion to impose a nonguidelines sentence. He argues, therefore, that the district court believed that

it could not sentence him below the Guidelines in the absence of “extraordinary

circumstances” and could not consider certain factors such as age, risk of

recidivism, financial situation, or the need for psychiatric treatment in imposing

the sentence. Because this theory was not argued in the district court, we

review for plain error. See Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.),

cert. denied, 129 S. Ct. 328 (2008).

Nothing in the record suggests that the district court was constrained by

this court’s precedent from considering all of Zapata’s arguments for a nonguidelines sentence or that the district court believed that it could not deviate

from the advisory guidelines range in the absence of extraordinary

circumstances. To the contrary, the record reflects that the district court

considered Zapata’s arguments, the presentence report (PSR), and the

sentencing factors set forth in 18 U.S.C. § 3553(a), in determining Zapata’s

sentence. The district court’s reasons for imposing the sentence are both

apparent from the record and sufficient to support Zapata’s sentence. See
No. 06-41394

3

United States v. Bonilla, 524 F.3d 647, 657-59 (5th Cir. 2008) (noting that the

district court had considered the arguments of the parties and the PSR, which

contained information pertaining to those arguments, and concluding that the

district court had adequately explained its choice of sentence). Accordingly,

there was no plain error. See Campos-Maldonado, 531 F.3d at 339.

In addition, Zapata has not shown that the district court’s imposition of a

within-guidelines sentence was improper under either the deferential Gall

standard of review or under plain-error review. See Gall, 128 S. Ct. at 597;

United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct.

962 (2009).

The judgment of the district court is AFFIRMED.