* 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should not be published and is not precedent except under the limited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. 07-40981

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RUBEN GOMEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-156-1

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Ruben Gomez appeals his 235-month sentence following his guilty plea

convictions for distribution of child pornography and attempting to persuade a

female under the age of 18 to engage in sexual activity. He contends that his

within-guideline sentence is procedurally unreasonable because the district

court did not give a sufficient explanation for the sentence. Because Gomez did

not object to the explanation at sentencing, we review this contention for plain

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-40981

2

error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).

The district court listened to the arguments of the parties and indicated that it

had read the defense objections, which requested a sentence below the applicable

guideline range. See UnitedStates v. Gomez-Herrera, 523F.3d 554, 565 (5th Cir.

2008); see also Rita v. United States, 127 S. Ct. 2456, 2463-65, 2468 (2007).

There was no clear or obvious error that affected Gomez’s substantial rights or

rendered the sentence procedurally unreasonable. See United States v. Izaguirre

Losoya, 219 F.3d 437, 441 (5th Cir. 2000).

Gomez also contends that in light of Gall v. United States, 128 S. Ct. 586

(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which issued after

his sentence, the district court labored under a misconception that it could not

sentence Gomez below the Guidelines in the absence of “extraordinary

circumstances” or based on the court’s disagreement with guideline policy.

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

court’s precedent from considering all of Gomez’s arguments for a nonguideline

sentence. Accordingly, there was no reversible plain error. See United States v.

Campos-Maldonado, ___ F.3d ___, 2008 WL 2357364, at *2 (5th Cir. June 11,

2008)(No. 07-20715).

Gomez also contends that his sentence is substantively unreasonable

because there is no empirical support for U.S.S.G. § 2G2.2, the Guideline

governing child pornography. He did not challenge the empirical grounds for

§ 2G2.2 in the district court, so his contention is reviewed for plain error. See id.

Nothing in the record suggests that the district court disagreed with the policy

behind the Guideline or believed that it was precluded by circuit precedent from

imposing a lesser sentence in the face of § 2G2.2. The judgment of the district

court is thus affirmed as to the sentence imposed.

Gomez also contends thatthe written judgment includes special conditions

of supervised release that were not included in the oral pronouncement of

sentence. The record reflects, and the Government concedes, that the oral
No. 07-40981

3

pronouncement of sentence did not include the special conditions stating that

Gomez may not contact the victim or her family and may not “view, possess or

have under his/her control, any nude depictions of children, [or] sexual oriented

or sexual stimulating materials” and may not patronize places where sexually

oriented materials are the “primary source of business.” Accordingly, the case

is remanded for the limited purpose of excising these specialterms of supervised

release from the written judgment. See United States v. Vega, 332 F.3d 849, 853

n.8 (5th Cir. 2003); United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

AFFIRMED AND REMANDED.