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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40195

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

SERGIO JORGE DELEON-FUENTES, also known as Jesus Humberto DeLeon

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:02-CR-541-ALL

Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges. 

PER CURIAM:*

Sergio Jorge DeLeon-Fuentes appeals the 18-month term of imprisonment

imposed following the revocation of his supervised release. He contends in light

of United States v. Booker, 543 U.S. 220 (2005), that this court must review his

sentence for reasonableness using the bifurcated approach set forth in Gall v.

United States, 128 S. Ct. 586, 594 (2007). DeLeon-Fuentes argues that his

sentence is unreasonable because the district court procedurally erred when it

United States Court of Appeals

Fifth Circuit

F I L E D

February 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-40195

2

failed to respond to two of the arguments he raised in mitigation of his sentence.

This court will review DeLeon-Fuentes’s argument, raised for the first

time on appeal, for plain error only. See United States v. Peltier, 505 F.3d 389,

391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008); United States v.

Jones, 484 F.3d 783, 792 (5th Cir. 2007). To establish plain error, DeLeonFuentes must show (1) that there was error, (2) that the error was clear or

obvious, and (3) that the error affected his substantial rights. See United States

v. Olano, 507 U.S. 725, 731-37 (1993). If these factors are established, the

decision to correct the forfeited error is within this court’s sound discretion,

which will not be exercised unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. See id. at 735-36.

The record reflects that the district court complied with 18 U.S.C.

§ 3583(e) by implicitly considering the relevant 18 U.S.C. § 3553(a) factors in

imposing DeLeon-Fuentes’s revocation sentence. See United States v. Gonzalez,

250 F.3d 923, 930 (5th Cir. 2001). Moreover, to the extent that § 3553(c) may

require a district court to state in open court its reasons for imposing a

revocation sentence, the district court’s statements were legally sufficient. The

district court’s references to DeLeon-Fuentes’s recidivism and his role in the

revocation offense provided sufficient explanation for the rejection of

DeLeon-Fuentes’s arguments in favor of a more lenient revocation sentence. See

Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007). The district court’s

statements indicated a reasoned basis for exercising its legal decision making

authority. Id.

The 18-month term of imprisonment imposed in DeLeon-Fuentes’s case fell

within the 24-month statutory maximum term of imprisonment that the district

court could have imposed upon revocation of his supervised release. See 18

U.S.C. § 3559(a)(3); § 3583(e)(3); 8 U.S.C. § 1326(a), (b)(2). The sentence also fell

within the range recommended by the policy statements in Chapter Seven of the

Sentencing Guidelines. See U.S.S.G. §§ 7B1.3(f), p.s., 7B1.4(a), p.s. DeLeon-
No. 08-40195

3

Fuentes’s appellate argument fails to establish that his sentence was

unreasonable or plainly unreasonable. DeLeon-Fuentes cannot establish plain

error. See Olano, 507 U.S. at 735-36.

The judgment of the district court is AFFIRMED.