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. 09-20461

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ELEAZAR VARGAS-GUTIERREZ, also known as Jose Vargas Vargas,

also known as Jose Vargas,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-52-1

Before DAVIS, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Jose Eleazar Vargas-Gutierrez (Vargas) pleaded guilty to illegal reentry

into the United States following deportation. See 8 U.S.C. § 1326(a). Vargas

claims that his 70-month sentence, which was near the high end of the properly

calculated guidelines range, is substantively unreasonable and that he should

have been granted a downward departure and sentenced below the guidelines

range. Vargas asserts that the district court did not apply the 18 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2010

Charles R. Fulbruge III

Clerk

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No. 09-20461

2

§ 3553(a) factors properly, did not take into account his cultural assimilation into

the United States, created an unwarranted disparity between his sentence and

the sentences of others convicted of illegal reentry, and imposed a sentence that

violated the Eighth Amendment’s bar against cruel and unusual punishment.

A defendant whose motion for a downward departure has been overruled

may argue on appeal that his sentence was unreasonable because the district

court “failed adequately to consider factors counseling in favor of a downward

departure.” United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert. denied,

128 S. Ct. 163 (2007). Reasonableness review is bifurcated; if a review of the

sentence for procedural error reveals none, the appellate court then determines

whether the sentence is substantively reasonable. Gall v. United States, 552

U.S. 38, 51 (2007). If error has been preserved, an appellate court reviewing for

reasonableness “merely asks whether the trial court abused its discretion.” Rita

v. United States, 551 U.S. 338, 351 (2007). Substantive reasonableness is

determined in light of the § 3553(a) sentencing factors. Gall, 552 U.S. at 49-50.

Although he asked for a sentence below or the guidelines range, Vargas

did not specifically object to the sentence that was imposed. Consequently, it is

questionable whether he is entitled to review for abuse of discretion or merely

for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361

(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Because Vargas is unable to show

either abuse of discretion or plain error, however, we need not decide which

standard of review applies.

While Vargas declared to the district court that the PSR incorrectly

recounted his prior conviction for aggravated robbery, it is clear that Vargas

failed to persuade the district court that this was so and that a downward

departure was in order. A sentencing court may rely on information in the PSR

in making factual determinations about a sentence unless the defendant shows,

by credible rebuttal evidence, that the PSR is untrue or inaccurate. United

States v. Ford, 558 F.3d 371, 376-77 (5th Cir. 2009). Although it made no

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explicit credibility determinations, when the district court adopted the PSR in

the face of Vargas’s objections it implicitly rejected Vargas’s account of the prior

crime. The district court was not required to accept Vargas’s self-serving

declarations, made with the purpose of reducing his sentence, about the

circumstances of leading to his prior conviction. See United States v. Buenrostro,

868 F.2d 135, 138 (5th Cir. 1989).

Vargas’s parity argument is equally unavailing. In considering an

appropriate sentence, the district court must account for “the need to avoid

unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” § 3553(a)(6). But because Vargas

identified no defendant whose situation was similar to his own, he was unable

to establish any sentencing disparity. See United States v. Duhon, 440 F.3d 711,

721 (5th Cir. 2006).

Vargas’s assertion of an Eighth Amendment claim is conclusory and

unsupported by legal analysis. An appellate court is not required to search the

record to find the legal basis for an issue. United States. v. Brace, 145 F.3d 247,

255 (5th Cir. 1998) (en banc). Because Vargas is represented by counsel on

appeal, his brief is not entitled to liberal construction. See Beasley v. McCotter,

798 F.2d 116, 118 (5th Cir. 1986). Issues must be briefed to be preserved. FED.

R. APP. P. 28(a)(9). Accordingly, this issue is not preserved and will not be

considered.

Because it was within the properly calculated guidelines range, Vargas’s

sentence is entitled to a presumption of reasonableness. See United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court, moreover,

considered Vargas’s argument for a sentence below the guidelines range but

determined that the record and the factors set forth in § 3553(a) called for

sentence at the high end of that range. Vargas has not favored us with any good

reason for disturbing that decision. See Gall, 552 U.S. at 51.

AFFIRMED.

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