* 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. 07-20842

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARIO ANTONIO CASTILLO

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-72-ALL

Before JONES, Chief Judge, and STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Mario Antonio Castillo appeals the 57-month sentence he received as a

result of a guilty plea conviction for illegal reentry following a deportation

occurring subsequent to an aggravated felony. Castillo contends that his

sentence is cruel and unusual and grossly disproportionate to his offense, in light

ofthe age of his prior conviction and his relatively law-abiding behavior upon his

return to the United States. Because Castillo did not object to his sentence or

the applicable guideline range on Eighth Amendment grounds, we review for

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2008

Charles R. Fulbruge III

Clerk
No. 07-20842

2

plain error. See United States v. Martinez, 496 F.3d 387, 389 (5th Cir.), cert.

denied, 128 S. Ct. 728 (2007). Castillo has not established that his 57-month

sentence, within the applicable guideline range, was disproportionately harsh.

See Rummel v. Estelle, 445 U.S. 263, 284-85 (1980); United States v. CardenasAlvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).

Castillo contends that requiring a party to show extraordinary

circumstances before imposing a sentence outside the applicable guideline range

reinstates the mandatory guideline scheme invalidated in United States v.

Booker, 543 U.S. 220 (2005). We review this claim for plain error because

Castillo did not raise it below. See United States v. Campos-Maldonado,

531 F.3d 337, 339 (5th Cir. 2008). Nothing in the record reflects that the district

court felt constrained by this court’s precedent prior to Gall v. United States,

128 S. Ct. 586 (2007), to impose a guideline sentence, and Castillo thus has not

shown reversible plain error. See id. To the extent that Castillo is arguing that

his sentence is substantively unreasonable, his sentence at the bottom of the

applicable guideline range is presumptively reasonable and should be upheld.

See Gall, 128 S. Ct. at 597; Rita v. United States, 127 S. Ct. 2456, 2468 (2007);

United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008).

Castillo also contends that his sentence violates the Equal Protection

Clause because his high total offense level results in the same sentence as

imposed on individuals with higher criminal history categories and because he

has received a higher sentence than an individual who illegally reenters the

United States but does not have a prior aggravated felony. He has not

established that “other persons similarly situated as is the claimant unfairly

enjoy benefits that he does not or escape burdens to which he is subjected.”

United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983); see also CardenasAlvarez, 987 F.3d at 1134. The judgment of the district court is thus

AFFIRMED.
No. 07-20842

3