IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

Jorge Blanco-Castillo challenges his 46-month sentence,imposed following

his guilty-plea conviction on one count of attempted exportation of defense

articles from the United States. Blanco contends hiswithin-Guidelines sentence

is: procedurally unreasonable because the district court misapprehended its

authority to impose a downward departure pursuant to application note one of

Guideline § 2M5.2; and substantively unreasonable because it is greater than

necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

May 4, 2012

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. 11-41068

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, 564 F.3d 357, 361 (5th Cir.

2009). For plain error, a forfeited error that is clear or obvious and that affects

his substantial rights must be shown. E.g., Puckett v. United States, 556 U.S.

129, 135 (2009). If such a showing is made, our 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 refusal to depart

downward from the Guidelines-sentencing range, see United States v.

Hernandez, 457 F.3d 416, 424 (5th Cir. 2006), unless the district court “held a

mistaken belief that the Guidelines do not give it the authority to depart”.

United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008) (internal quotation

marks omitted). And, “something in the record must indicate that the district

court held such an erroneous belief”. United States v. Valencia-Gonzales, 172

F.3d 344, 346 (5th Cir. 1999). 

Nothing in the record indicates the district 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 departure was warranted. Therefore, Blanco has failed to show

error, plain or otherwise, with respect to the procedural reasonableness of his

sentence. See Puckett, 556 U.S. at 135. Further, 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 request 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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No. 11-41068

unreasonable nor has he rebutted the presumption of reasonableness that

attaches to his within-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.

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