IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50400

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

FRANCISCO ANTONIO SERAFIN-RODRIGUEZ, also known as Franciso

Antonio Serafin, also known as Francisco Serafin,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-2850-1

Before DeMOSS, STEWART, and ELROD, Circuit Judges.

PER CURIAM:

*

Francisco Antonio Serafin-Rodriguez (Serafin) pleaded guilty without the

benefit of a plea agreement to one count of illegally reentering the United States

after having been deported. He appeals his 46-month, within-guidelines

sentence, arguing that it is substantively unreasonable.

Serafin urges that despite his failure to object to the reasonableness of his

sentence in the district court, this court should review the sentence under an

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2011

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. 10-50400

abuse-of-discretion standard. He raises the argument only to preserve it for

possible future review because, as he recognizes, it is foreclosed and our review

is for plain error. United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.

2009). To succeed under this standard, Serafin must show an error that is clear

or obvious and that affects his substantial rights, but even so, this court

generally will exercise its discretion to correct the error only if it “seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (citation omitted).

Moreover, we presume that his within-guidelines sentence is reasonable. See

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

Serafin contends that his sentence is greater than necessary to achieve the

purposes of sentencing because the district court did not take into account his

cultural assimilation to the United States. Though the district court had the

authority to impose a shorter sentence based on this factor, it was not required

to weigh Serafin’s cultural assimilation more heavily than other factors. See

United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). The court

heard and understood Serafin's arguments for a lower sentence, but merely

rejected the contention that his cultural assimilation outweighed his criminal

history. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.

2008). Specifically, the court found relevant that Serafin committed some of his

crimes after illegally reentering the United States and that he had six felony

convictions and two misdemeanor convictions. Serafin’s disagreement with the

court’s balancing of the relevant factors is insufficient to show that the district

court committed error, much less plain error, in imposing a within-guidelines

sentence. See Puckett, 129 S. Ct. at 1429; Ruiz, 621 F.3d at 398.

Serafin also contends that the district court mistakenly observed that he

burglarized cars for a living. However, this remark is supported in the record

because according to the presentence report, though Serafin held jobs in the

past, he was unemployed when he was caught breaking into cars and stealing

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tools. In any event, Serafin does not explain how this statement rendered his

sentence substantively unreasonable.

Finally, Serafin argues that his within-guidelines sentence should not be

presumed reasonable because § 2L1.2, the illegal reentry Guideline used to

determine his sentence, is not supported by empirical data. As Serafin correctly

concedes, however, this argument is foreclosed. See United States v. Duarte, 569

F.3d 528, 530-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009); United States v.

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192

(2009). Accordingly, Serafin has not shown that the district court committed

error, much less plain error. See Puckett, 129 S. Ct. at 1429.

The judgment of the district court is AFFIRMED.

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