IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50154

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE MARTIN ZAVALA-ACOSTA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:14-CR-476

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Jose Martin Zavala-Acosta pleaded guilty to one count of illegal reentry 

and received a within-guidelines sentence of 57 months of imprisonment and 

a three-year term of supervised release. On appeal, Zavala-Acosta argues that:

(1) the district court committed procedural error when it failed to articulate 

why it denied his request for a downward departure under U.S. Sentencing 

Guidelines § 5H1.4 based on his ankle injury; and (2) his sentence was 

 

* 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

April 1, 2016

Lyle W. Cayce

Clerk

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No. 15-50154

2

substantively unreasonable because it was greater than necessary to satisfy 

the sentencing goals under 18 U.S.C. § 3553(a).

We engage in a bifurcated review of the sentence imposed by the district 

court, first considering whether the district court committed a “significant 

procedural error,” such as “failing to adequately explain the chosen sentence” 

and then reviewing the substantive reasonableness of the sentence for an 

abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). ZavalaAcosta concedes that our review is for plain error because he failed to object 

below.1 See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To 

show plain error, Zavala-Acosta must show a forfeited error that is clear or 

obvious and that affects his substantial rights. See Puckett v. United States, 

556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion 

to correct the error but only if it seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. See id.

Zavala-Acosta argues that the district court procedurally erred by not 

conducting additional fact-finding and not explaining its rationale in denying 

his request for a downward departure under § 5H1.4. We have jurisdiction to 

review a district court’s refusal to depart downward “only if the district court’s 

refusal is based on the mistaken belief that the court lacked discretion to 

depart.” United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000). “The 

jurisdictional bar applies even where the district court responds to a request 

for downward departure with a ‘summary denial without explanation’ or with 

an implicit denial by imposing a Guideline sentence.” United States v. 

Hernandez, 457 F.3d 416, 424 (5th Cir. 2006) (citation omitted). Zavala-Acosta 

does not allege, and the record does not reflect, that the district court 

 

1 Because we hold that the district court did not err, let alone plainly err, our result 

would be no different if we reviewed for abuse of discretion rather than plain error. 

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misunderstood the scope of its discretion in considering Zavala-Acosta’s motion 

for a downward departure under § 5H1.4. Accordingly, we lack jurisdiction to 

hear Zavala-Acosta’s claim of procedural error. 

As to Zavala-Acosta’s claim that his sentence was substantively 

unreasonable because it failed to take his ankle injury into account, a withinguidelines sentence is presumptively reasonable. See United States v. 

Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Zavala-Acosta’s ankle injury was 

discussed at sentencing and the district court determined that a sentence at 

the bottom of Zavala-Acosta’s guidelines range was appropriate. There was no 

indication that the injury rose to the level warranting a below-guidelines 

sentence. See U.S.S.G. § 5H1.4; Rodriguez, 523 F.3d at 526. Zavala-Acosta is 

essentially asking us to reweigh the § 3553(a) factors, but “the sentencing 

judge is in a superior position to find facts and judge their import under 

§ 3553(a) with respect to a particular defendant.” United States v. CamposMaldonado, 531 F.3d 337, 339 (5th Cir. 2008). Zavala-Acosta has not shown 

that his sentence was substantively unreasonable. See id.; Rodriguez, 523 F.3d 

at 525-26.

AFFIRMED.

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