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should not be published and is not precedent except under the limited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. 08-10158

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OSCAR JOEL MARTINEZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:07-CR-43-ALL

Before SMITH, STEWART and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Oscar Joel Martinez appeals from his guilty plea conviction of receiving

child pornography and aiding and abetting. Martinez contends that his

sentence, which was within the relevant guideline sentencing range, was

unreasonable because the relevant guideline sentencing provision, U.S.S.G.

§ 2G2.2, is irrational and was not the result of careful study and deliberation but

rather was the result of Congressional fiat; that the district court failed to

United States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-10158

2

provide adequate reasons for his sentence; and that the district court sentenced

him as if the Sentencing Guidelines were mandatory.

Following United States v. Booker, 543 U.S. 220 (2005), sentences are

reviewed for “reasonableness.” United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005). Under the now-discretionary guidelines scheme, the sentencing court

has a duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly

determine the applicable guidelines range. Mares, 402 F.3d at 518-19. Pursuant

to Gall v. United States, 128 S. Ct. 586, 596-97 (2007), this court must determine

whether the sentence imposed is procedurally sound, including whether the

calculation of the advisory guidelines range is correct, and whether the sentence

imposed is substantively reasonable. Review is for abuse of discretion. Id. at

597.

Martinez raises his issues for the first time on appeal. Our review is for

plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.),

cert. denied, 129 S. Ct. 625 (2008). To show plain error, an appellant must show

a forfeited error that is clear or obvious and that affects his substantial rights.

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes

such a showing, this court has the discretion to correct the error but only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. 

A sentence imposed within a properly calculated guideline sentencing

range is entitled to a rebuttable presumption of reasonableness. United States

v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see Rita v. United States, 127 S. Ct.

2456, 2462 (2007). “In appropriate cases, district courts certainly may disagree

with the Guidelines for policy reasons and may adjust a sentence accordingly.

But if they do not, we will not second-guess their decisions under a more lenient

standard simply because the particular Guideline is not empirically-based.”

United States v. Mondragon-Santiago, F.3d , 2009 WL 782894, *9 (5th

Cir. Mar. 26, 2009). This court “will presume a sentence within the current
No. 08-10158

3

version of the Guidelines to be reasonable, and the defendant must rebut that

presumption to demonstrate substantive unreasonableness.” Id. Martinez has

shown no error, plain or otherwise, as to whether his sentence is entitled to a

presumption of reasonableness.

The district court at sentencing had before it the presentence report (PSR),

Martinez’s motion for a departure or variance, and the Government’s response

to that motion. The district court adopted the calculations and reasoning of the

PSR and listened to Martinez’s particular arguments for a departure or

variance. The district court said nothing about the motion for a departure or

variance, but did state that the sentence served the goals of punishment and

deterrence. The district court’s reason for the sentence was explained

adequately. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir.), cert.

denied, 129 S. Ct. 624 (2008).

Martinez does not direct this court to any particular statements by the

district court suggesting that it was sentencing him under a mistaken belief that

the Sentencing Guidelines were mandatory, and his contention has no basis in

fact. The district court said nothing at the sentencing hearing suggesting that

it viewed the Guidelines as mandatory, and it admonished Martinez at his

rearraignment that the Guidelines were advisory only.

AFFIRMED.