IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41222

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROLANDO ROEL-VILLAGOMEZ, also known as Alejandro Roel-Villagomez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:09-CR-1172-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Rolando Roel-Villagomez appeals his sentence of 37 months’

imprisonment, imposed following his guilty-plea conviction for being an alien

found unlawfully in the United States after having previously been removed.

See 8 U.S.C. § 1326. He contends: the district court committed procedural error

by failing to explain sufficiently its reasons for rejecting his request for a

downward variance from the advisory Guideline sentencing range; and, his

sentence is substantively unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 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. 09-41222

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, 552 U.S. 38, 50–51 (2007). In that respect, its application of the

Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

Accordingly, pursuant to Gall, 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”. Id. at 752-53. If there is no such

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

for an abuse of discretion. Id. at 751-53. “[A] sentence within a properly

calculated Guideline range is presumptively reasonable”. United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

“[W]hen a judge decides simply to apply the Guidelines to a particular

case, doing so will not necessarily require lengthy explanation”. Rita v. United

States, 551 U.S. 338, 356 (2007). The requirement that the district court explain

its sentence may be satisfied by the district court’s listening to the parties’

contentions and then indicating that a sentence within the Guidelines range is

appropriate. Id. at 357-59. Here, the district court heard Roel’s contentions,

rejected them, and stated that a sentence within the advisory Guidelines range

satisfied the factors of 18 U.S.C. § 3553(a). Accordingly, the district court’s

explanation of the sentence, although brief, was legally sufficient. See Rita, 551

U.S. at 358-59.

For substantive reasonableness, as noted, “[a] discretionary sentence

imposed within a properly calculated Guidelines range is presumptively

reasonable”. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.),

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No. 09-41222

cert denied, 129 S. Ct. 328 (2008). That this court “might reasonably have

concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Gall, 552 U.S. at 51. Roel has presented “no

reason to disturb” the presumption of reasonableness in this case. See United

States v. Rodriguez, 523 F.3d 519, 526 (5th Cir.), cert. denied, 129 S. Ct. 624

(2008).

AFFIRMED.

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