IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 for his conviction for

conspiracy to possess with intent to distribute more than 500 grams of a mixture

or substance containing methamphetamine. The district court sentenced him

to 210 months of imprisonment, the bottom of his 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 lesser sentence, failed to adequately

United States Court of Appeals

Fifth Circuit

F I L E D

April 24, 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.

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

explain its reasons for the sentence, and erred by implicitly presuming that the

guidelines range was reasonable.

Because Espinoza did not object on those grounds in the district court,

plain error review applies to his arguments. See United States v.

Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To show plain error,

Espinoza must show a forfeited 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 discretion to correct the error, but it

will do so only if the error seriously affects 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 chosen sentence,

or applies a presumption of reasonableness to the guidelines range. Gall v.

United States, 552 U.S. 38, 51 (2007); Rita v. United States, 551 U.S. 338, 351

(2007). However, “when a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy explanation.” Rita,

551 U.S. at 356. The district court considered Espinoza’s arguments for a

below-guidelines sentence, which included arguments concerning his personal

history and characteristics, the circumstances of his role in the offense, and his

limited criminal history, but the district court decided that a sentence at the

bottom of his advisory guidelines range was appropriate. It never expressly

applied a presumption thatthe Guidelines were reasonable or required Espinoza

to demonstrate extraordinary circumstances in order to receive a

below-guidelines sentence. See United States v. King, 541 F.3d 1143, 1145 (5th

Cir. 2008).

Moreover, to show that an error affected his substantial rights, Espinoza

is required to demonstrate a reasonable probability that the result of the

proceeding would have been different but for the error. Mondragon-Santiago,

564 F.3d at 364. Although the district court did not explicitly refer to the

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No. 12-40621

§ 3553(a) factors, “a checklist recitation of 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. 2006). Espinoza has failed to demonstrate an affect

on his substantial rights and thus has not shown plain error. See

Mondragon-Santiago, 564 F.3d at 365; King, 541 F.3d at 1145.

AFFIRMED.

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