IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40408

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE LUIS SOSA-ALMONTES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CR-920-1

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Luis Sosa-Almontes (Sosa) appeals his

conviction and 27-month within-guidelines sentence, following his conditional

guilty plea to being a felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1),

924(a)(2). Sosa contends that the district court erred in denying his motion to

suppress the evidence of the firearm seized from his vehicle. In denying Sosa’s

motion to suppress, the district court determined that probable cause existed for

Sosa’s arrest and that his consent to search the vehicle was voluntary. In the

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2011

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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No. 11-40408

alternative, the court determined that even if Sosa’s consent to the search was

not voluntary, there was probable cause for an arrest, so the firearm would have

been found routinely in a lawful inventory search of the vehicle. Sosa has failed

to challenge on appeal the district court’s determination that, even if his consent

was not voluntary, the firearm would have been discovered in an inventory

search of the vehicle. Accordingly, he has abandoned review of that issue. See

United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.1992). Sosa has not

demonstrated that the district court’s denial of his motion to suppress the

evidence was erroneous.

Sosa asserts that his within-guidelines sentence violates the Fifth and

Sixth Amendments and is unreasonable under United States v. Booker, 543 U.S.

220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), because (1) his 

criminal history score included points for a 2003 simple possession conviction,

which constituted double counting, and (2) he had become a model and

productive citizen, working mainly to assist his ailing mother.

As Sosa did not raise either of these appellate arguments in the district

court, we review for plain error only. See United States v. Mondragon-Santiago,

564 F.3d 357, 361 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391-92

(5th Cir. 2007). To show plain error, the appellant must show a forfeited error

that is clear or obvious and that affects his substantial rights. Puckett v. United

States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such

a showing, we have the discretion to correct the error but only if it seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

To the extent that Sosa asserts that his 2003 conviction, for which he was

assigned three criminal history points, was for simple possession of a controlled

substance, he is incorrect. That prior conviction was for possession with intent

to deliver a controlled substance. To the extent that Sosa raises a doublecounting argument, it is unavailing. See United States v. Hawkins, 69 F.3d 11,

14-15 (5th Cir. 1995).

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“[A] sentence within a properly calculated Guideline range is

presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.

2006). Sosa’s assertion that he had become a model and productive citizen,

working mainly to assist his ailing mother, is insufficient to rebut the

presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d

554, 565-66 (5th Cir. 2008); United States v. Rodriguez, 523 F.3d 518, 526 (5th

Cir. 2008). Sosa has not shown that his sentence is unreasonable and has not

rebutted the presumption of reasonableness that attaches to his withinguidelines sentence. See Alonzo, 435 F.3d at 554-55. Sosa has not shown that

the district court abused its discretion under Gall v. United States, 552 U.S. 38,

49-51 (2007), and thus has shown no error, plain or otherwise. Accordingly, the

judgment of the district court is AFFIRMED.

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