### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-41068 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JORGE BLANCO-CASTILLO, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:11-CR-178-1

Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges. PER CURIAM: * J o r ge Bl anc o - C a s tillo challenges his 46-month s e nt e nc e , i m p o s e d f ollo win g his guilty-plea conviction on o n e count of attempted exportation of defense articles from the United States. Blanco contends hi s within-Guidelines sentence is: procedurally unreasonable because the d i s t r ict court misapprehended its authority to impose a downward departure pursuant to application note one of Guideline § 2M5.2; and substantively unreasonable bec a use it is greater than necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a). U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D May4, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-41068 Document: 00511844671 Page: 1 Date Filed: 05/04/2012No. 11-41068

Although Blanco moved in district court for a downward departure pursuant to Guideline § 5K2.0, he did not raise the procedural-and-substantivereasonableness contentions he raises here. Accordingly, review is only for plain

error. E.g. , United States v. Mondragon-Santiago , 5 6 4 F.3d 357, 361 (5th Cir. 2009). For plain error, a forfeited error that is clear or obvious and that affects h i s s ub s t antial rights must be shown. E.g., Puckett v. United States , 556 U. S

. 129, 135 (2009). If such a showing is made, o u r court has the discretion to correct the error but will generally do so only if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id

. Our court lacks jurisdiction to review a district court’s r e f usal to depart downward from the G u i d e l ines-sentencing range, see United States v. Hernandez , 457 F.3d 416, 424 (5th Cir. 2006), unless the d i s t ri c t c ourt “held a mistaken belief that the Guidelines do not give it the authority to de p art”. United States v. Lucas , 516 F.3d 316, 350 (5th Cir. 2008) (interna l quotation marks omitted). And, “something in the record must indicate that the district court held such a n e r r o neous belief”. United States v. Valencia-Gonzales , 172 F.3d 344, 346 (5th Cir. 1999). Nothing in the record indicates the distr ict court wished to grant a downward departure pursuant to Guideline §§ 2M5.2 or 5K2.0, but mistakenly believed it could not do so. Rather, the record demonstrates that the court did not believe a de p a r t u re was warranted. Therefore, Blanco has failed to show
error, plain or other w i se, with respect to the procedural reasonableness of his sentence. See Puckett , 556 U.S. at 135

. F u r ther, as noted, to the extent he challenges the denial of the downward departure, our court lacks jurisdiction to review the contention. See Hernandez, 457 F.3d at 424. The district court considered Blanco ’ s r e q u est for a lower sentence, but elected to impose a within-Guidelines sentence. A within-Guidelines sentence is presumptively reasonable. See, e.g., United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). Blanco has not shown that his sentence is substantively
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unreasonable nor has he r e b utted the presumption of reasonableness that attaches to h i s w i t h in-Guidelines sentence. See, e.g., United States v. GomezHerrera , 523 F.3d 554, 565-66 (5th Cir. 2008). Accordingly, he has failed to show the district court plainly erred by imposing the within-Guidelines sentence. See Puckett , 556 U.S. at 135. DISMISSED IN PART; AFFIRMED IN PART.

3 Case: 11-41068 Document: 00511844671 Page: 3 Date Filed: 05/04/2012