### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30135 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ALCIDES ROMAN, Defendant-Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:12-CR-93-1

Before JOLLY, DeMOSS, and ELROD, Circuit Judges. PER CURIAM: * Alcides Roman appeals the 41-month abo v e-guideline sentence imposed after he pleaded g u i l t y to wire fraud. H e contends that the sentence was substantively unreasonable. Or d i n a rily, we would review the sentence f or reasonableness under an abuse-of-discretion standard, looking first for procedural reasonableness and then for substantive reasonableness. See G all v. U nited States , 552 U.S. 38, 46, 51 (2007). But we r e v i ew Roman’s claims for plain error because his general U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 18, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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objection to the sentence was not “sufficiently specific t o alert the district court to the nature of the alleged error and t o provide an opportunity for correction.” United States v. Neal , 5 78 F.3d 270, 272 (5th Ci r . 2 0 0 9 )

. To show p lain error, Roman must show a forfeited error that was “clear or obvious, ra t h e r than subject to reasonable dispute” and that the error affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). I f he does that, we have d i s c r e t i o n to correct the error if it seriously affected th e integrity, fairness or public reputation of the proceedings. See id

. The district court orally described the sentence a s an upward “departure” based on the Sentencing Guidelines, but the Statement of Reasons also indicates that it was a “variance” outside the guideline s ystem based on 18 U.S.C. § 3553(a). Cf. United Stat e s v . B r a n t ley , 537 F.3d 347, 349 (5th Cir. 2008) (identifying three types of sentences). The precise characterization i s n ot significant because the sentence is neither plainly erroneous n or unreasonable. See id. Roman contends that the court improperly base d the sentence on his arrest record. However, the district court acknowledged that it could not take Roman’s arre s t s i n t o account, and it did not discuss them at length or overtly rely o n them as the district c ourt had done in United S tates v. J ohnson , 648 F.3d 2 73, 278-79 (5th C ir. 2011). The district court did not commit a ny clea r a n d obvious error by referring to Roman’s arrests. See Puckett , 556 U.S. at 135. We also reject Roman’s contention that the c ourt gave too much weight to

a letter from a victim, Jason Bell. Bell’s letter w as substantially consistent with t h e presentence report (PSR) and Roman’s o wn concession that he faced ci v i l litigation a nd owed several people m one y . T h e district c ourt did n ot commit clear or obvious error by considering the letter. See Puckett , 556 U.S. at 135. Similarly, we find no merit in R oman’s argument th at the c o urt did not express proper reasons for the sentence. The court explained that it was basing the sentence on § 3 553(a). B ell’s letter, plus testimony and reports from other
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victims about non-monetary losses and monetary losses they were seeking to

recover i n civil l itigation, all reflected “the nature and circumstance of the offense a n d t h e h istory and characteristics o f the defendant” as well as “the

s e r iousness of the offense.” § 3553(a)(1) & (a)(2)(A). The reasons f o r t h e sentence are not clearly or obviously er r o n e o u s . See Puckett , 556 U .S. at 135. Moreover, Roman f

ails to show that his sentence would have been less severe if the court had been r equired to provide some further explanation. C f

. United States v. Mondragon-Santiago , 564 F.3d 357, 364-65 (5th Cir. 2009) (reviewing a within-guidelines sentence). Roman also argues that the court gave insufficient weight t o the guideline calculations. The d i s t r i c t c ourt was not required to p resume that a s entence within the guideline range was reasonable. See Rita , 551 U.S. 338, 351 (2007). Roman asks this c ourt to substitute his assessment o f the sentencing factors for the district cou r t ’ s a s sessment, which is directly contrary to the deferential review dictated by Gall

. G all v. United States , 552 U.S. 38, 51 (2007). Finally, the d egree of deviation, f rom 27 to 41 months, was neither unreasonable nor an abuse of discretion. See United States v. H errera-Garduno , 519 F.3d 526, 531-32 (5th Cir. 2008) (collecting cases and affirming a greater deviation). The judgment is AFFIRMED.

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