IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 above-guideline sentence imposed

after he pleaded guilty to wire fraud. He contends that the sentence was

substantively unreasonable.

Ordinarily, we would review the sentence for reasonableness under an

abuse-of-discretion standard, looking first for procedural reasonableness and

then for substantive reasonableness. See Gall v. United States, 552 U.S. 38, 46,

51 (2007). But we review Roman’s claims for plain error because his general

United States Court of Appeals

Fifth Circuit

F I L E D

October 18, 2013

Lyle W. Cayce

Clerk

* 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.

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objection to the sentence was not “sufficiently specific to alert the district court

to the nature of the alleged error and to provide an opportunity for correction.” 

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). To show plain error,

Roman must show a forfeited error that was “clear or obvious, rather than

subject to reasonable dispute” and that the error affected his substantial rights. 

Puckett v. United States, 556 U.S. 129, 135 (2009). If he does that, we have

discretion to correct the error if it seriously affected the integrity, fairness or

public reputation of the proceedings. See id. 

The district court orally described the sentence as an upward “departure”

based on the Sentencing Guidelines, but the Statement of Reasons also indicates

that it was a “variance” outside the guideline system based on 18 U.S.C.

§ 3553(a). Cf. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)

(identifying three types of sentences). The precise characterization is not

significant because the sentence is neither plainly erroneous nor unreasonable. 

See id.

Roman contends that the court improperly based the sentence on his

arrest record. However, the district court acknowledged that it could not take

Roman’s arrests into account, and it did not discuss them at length or overtly

rely on them as the district court had done in United States v. Johnson, 648 F.3d

273, 278-79 (5th Cir. 2011). The district court did not commit any clear and

obvious error by referring to Roman’s arrests. See Puckett, 556 U.S. at 135. 

We also reject Roman’s contention that the court gave too much weight to

a letter from a victim, Jason Bell. Bell’s letter was substantially consistent with

the presentence report (PSR) and Roman’s own concession that he faced civil

litigation and owed several people money. The district court did not commit

clear or obvious error by considering the letter. See Puckett, 556 U.S. at 135. 

Similarly, we find no merit in Roman’s argument that the court did not

express proper reasons for the sentence. The court explained that it was basing

the sentence on § 3553(a). Bell’s letter, plus testimony and reports from other

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No. 13-30135

victims about non-monetary losses and monetary losses they were seeking to

recover in civil litigation, all reflected “the nature and circumstance of the

offense and the history and characteristics of the defendant” as well as “the

seriousness of the offense.” § 3553(a)(1) & (a)(2)(A). The reasons for the

sentence are not clearly or obviously erroneous. See Puckett, 556 U.S. at 135. 

Moreover, Roman fails to show that his sentence would have been less severe if

the court had been required to provide some further explanation. Cf. 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 to the guideline

calculations. The district court was not required to presume that a sentence

within the guideline range was reasonable. See Rita, 551 U.S. 338, 351 (2007). 

Roman asks this court to substitute his assessment of the sentencing factors for

the district court’s assessment, which is directly contrary to the deferential

review dictated by Gall. Gall v. United States, 552 U.S. 38, 51 (2007). Finally,

the degree of deviation, from 27 to 41 months, was neither unreasonable nor an

abuse of discretion. See United States v. Herrera-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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