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

No. 12-40621 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. HERON ESPINOZA, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-1111-2

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Heron Espinoza appeals the sentence imposed f o r h i s conviction for conspiracy to p ossess with intent to distribute m ore than 500 grams of a mixture

o r substance containing methamphetamine. The district court sentence d h i m to 210 months of imprisonment, the bottom o f h i s advisory guidelines range. Espinoza argues that the district court failed to consider the 18 U .S.C. § 3553(a) factors in regard to his arguments for a l esser sentence, failed to adequately 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 April 24, 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

. R. 47. 5. 4. Case: 12-40621 Document: 00512219835 Page: 1 Date Filed: 04/24/2013No. 12-40621

explain its reasons f

or the sentence, and erred by i m plicitly presuming that the guidelines range was reasonable. Because Espinoza did not object o n those grounds in the d i s t r i ct court, plain e rror review a pplies t o h i s arguments. See U nited States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009). To show p l ain error, Espinoza must show a f orfeited 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, this court has the d i scretion to correct the error, but it will d o so only i f the error seriously a f f ects the fairness, integrity, or public reputation of judicial proceedings. See id. A sentencing court commits significant procedural error where it fails to consider the § 3553(a) factors, fails to adequately explain the c hosen sentence,

or applies a presumption of reasonableness to the guidelines range. G a l l v. United States , 552 U.S. 38, 51 (2007); Rita v. United States , 551 U .S. 338, 351 (2007). H owever, “when a judge decides simply to a ppl y t h e G u i delines to a particular case, doing so will not n ecessarily require l engthy explanation.” Rita , 551 U.S. at 356. The district court considered E s p i n o z a ’s arguments for a below-guidelines s e n tence, which inc luded arguments concerning his personal history and characteristics, the c ircumstances of his role in the offense, and his limited criminal history, b ut t h e district court decided that a s entence at the bottom of his advisory gu i d e l i nes r ange was appropriate. It never expressly applied a p r e s u m p ti o n th at the Guidelines w ere reasonable o r required Espinoza to demonstrate extraordinary circumstances in order t o r e c eive a below-guidelines sentence. See United S tates v. King , 5 41 F.3d 1143, 1145 (5th Cir. 2008). Moreover, to s how that an error affected his substantial rights, Espinoza is required to demonstrate a reasonable probability that the r e s u l t o f the proceeding w ou l d h a v e b een different b ut for the error. Mondragon-Santiago , 564 F.3d at 364. Although the district c ourt d i d n o t explicitly refer to the
2 Case: 12-40621 Document: 00512219835 Page: 2 Date Filed: 04/24/2013No. 12-40621

§ 3553(a) factors, “a checklist recitation o f the section 3553(a) factors is neither
necessary nor sufficient for a sentence to be reasonable.” United States v
. Smith , 440 F.3d 704, 707 (5th Cir. 2 006). Espinoza has failed to d e monstrate an affect

on his substantial rights an d t h u s has not shown plain error. See Mondragon-Santiago , 564 F.3d at 365; K ing , 541 F.3d at 1145. AFFIRMED.

3 Case: 12-40621 Document: 00512219835 Page: 3 Date Filed: 04/24/2013