### 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 rel ease. 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 s entence was

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 1, 2016 Lyle W. Cayce Clerk Case: 15-50154 Document: 00513448567 Page: 1 Date Filed: 04/01/2016No. 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 w hether 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). Zavala

Acosta 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 clea r 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 repu tation of judicial proceedings. See i d

. 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 jur isdiction 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 jurisdict ional 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, o ur result would be no different if we reviewed for abuse of discretion rather than plain error

. Case: 15-50154 Document: 00513448567 Page: 2 Date Filed: 04/01/2016No. 15

- 50154

3 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 h is ankle injury into account, a within

guidelines 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 s entence 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 a sking us to reweigh the § 3 553(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. Campos

Maldonado , 531 F.3d 337, 339 (5th Cir. 200 8). Zavala

- Acosta has not shown that his sentence was substantively unreasonable

. See id. ; Rodriguez , 523 F.3d at 525

- 26. AFFIRMED. Case: 15-50154 Document: 00513448567 Page: 3 Date Filed: 04/01/2016