IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11299

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ROSALES, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:18-CR-69-1

Before DAVIS, SMITH and DUNCAN, Circuit Judges.

PER CURIAM:*

Jose Rosales, Jr., pleaded guilty to one count of possession with the 

intent to distribute a controlled substance and was sentenced above the 

advisory guidelines range to 24 months of imprisonment and a two-year term 

of supervised release. On appeal, he argues that his sentence is substantively 

unreasonable. He also argues that the district court plainly erred by imposing 

a condition of supervised release requiring that he “permit a probation officer 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2019

Lyle W. Cayce

Clerk

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No. 18-11299

2

to visit him at any time at home or elsewhere” and “permit confiscation of any 

contraband observed in plain view” of the probation officer.

As to Rosales’s challenge to the substantive reasonableness of his 

sentence, while we generally review the substantive reasonableness of a 

sentence imposed for an abuse of discretion, see Gall v. United States, 552 U.S. 

31, 51 (2007), we require an objection in the district court to substantive 

reasonableness after sentence is pronounced to preserve error. See United 

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Peltier, 505 

F.3d 389, 391-92 (5th Cir. 2007).1 Nonetheless, Rosales’s substantive 

reasonableness challenge fails even under the abuse-of-discretion standard of 

review. See United States v. Rodriguez, 602 F.3d 346, 361 (5th Cir. 2010) 

(declining to decide standard of review and applying more lenient standard).

In determining substantive reasonableness, we consider “the totality of 

the circumstances, including the extent of any variance from the Guidelines 

range.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal 

quotation marks and citation omitted). Here, the district court made an 

individualized assessment as to Rosales and was free to conclude that in this 

case, the advisory guidelines range gave insufficient weight to some of the 

sentencing factors. See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 

2008). The district court’s reasons for imposing a variance adequately reflected 

the sentencing factors in 18 U.S.C. § 3553(a). While Rosales’s 24-month 

sentence is 12 months longer than the highest sentence that could have been 

imposed under his advisory guidelines range, that variance is nevertheless 

within the range that we have held to be reasonable. See Lopez-Velasquez, 526 

F.3d at 806-07.

 

1 The Supreme Court’s grant of certiorari in Holguin-Hernandez v. United States, No. 

18-7739, 2019 WL 429919 (U.S. June 3, 2019), does not disturb our precedent. See United 

States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).

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As to Rosales’s challenge to the condition of supervised release, because 

Rosales did not object to the imposition of the condition, our review is for plain 

error. See United States v. Salazar, 743 F.3d 445, 448 (5th Cir. 2014). To 

prevail on plain error review, Rosales must identify (1) a forfeited error, (2) 

that is clear or obvious, rather than subject to reasonable dispute, and (3) that 

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If he satisfies the first three requirements, this court may, in its 

discretion, remedy the error if the error seriously affects the fairness, integrity 

or public reputation of judicial proceedings. See id. Rosales has not shown 

that the district court’s imposition of the condition was a clear or obvious error. 

See United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019). 

AFFIRMED.

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