IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41212

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PATRICK ORR,

Defendant-Appellant

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 1:10-CR-91-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Patrick Jason Orr was convicted after a jury trial of one count of bank

robbery, and one count of possession of a firearm during the commission of a

violent crime. The district court imposed a within-guidelines sentence of 188

months of imprisonment on the bank robbery count, the statutory minimum

sentence of 120 months of imprisonment on the possession-of-a-firearm count,

and a five-year term of supervised release for each offense. The district court

ordered that the prison terms be served consecutively and that the supervised

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 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. 11-41212

release terms be served concurrently. The district court further ordered that the

instant terms of imprisonment be served consecutively to Orr’s undischarged

sentence for his prior conviction in the United States District Court for the

Southern District of Alabama for being a felon in possession of a firearm and

that his instant term of supervised release be served concurrently with the term

of supervised release imposed for his prior conviction. 

Orr argues that the district court erred in its decision to order his instant

sentence to run consecutively to the undischarged sentence. He asserts that the

district court failed to consider the methodology set forth in U.S.S.G. § 5G1.3 in

determining whether the instant sentence should have been ordered to be served

concurrently or consecutively with the undischarged sentence. 

We review a sentence, including its consecutive nature, for reasonableness

in light of the Guidelines and the factors set out in 18 U.S.C. § 3553(a). Gall v.

United States, 552 U.S. 38, 46, 51 (2007); United States v. Candia, 454 F.3d 468,

472 (5th Cir. 2006). However, if a defendant has failed to preserve a claim for

relief, review is for plain error only. United States v. Mondragon-Santiago, 564

F.3d 357, 361 (5th Cir. 2009). While it is not clear whether Orr’s claim should

be reviewed for plain error or for reasonableness, we need not determine which

standard applies because Orr has not satisfied either standard. 

The record belies Orr’s assertions that the district court did not consider

the pertinent sentencing factors. The presentence report (PSR) and counsels’

arguments at sentencing alerted the district court to the relevant factors and,

therefore, the district court is presumed to have considered them. See United

States v. Izaguirre-Losoya, 219 F.3d 437, 440 & n.13 (5th Cir. 2011). The court

expressly noted that it had fully considered the Sentencing Guidelines and the

§ 3553(a) factors before pronouncing the sentence. See § 5G1.3(c), p.s., comment.

(n.3); § 3553(a)(2). Thus, the district court reviewed the relevant factors in

deciding to order Orr’s sentence to be served consecutively to his undischarged

sentence. See Izaguirre-Losoya, 219 F.3d at 440. 

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Orr also argues that his sentence is substantively unreasonable because

it is greater than necessary to accomplish the goals of sentencing. He suggests

that the consecutive nature of the prison terms imposed in this case rendered his

sentence substantively unreasonable. Orr asserts that the district court should

have considered reducing the sentence imposed for his bank robbery offense to

account for the consecutive mandatory minimum sentence that the district court

was required to impose for the possession-of-a-firearm offense. Because Orr did

not object in the district court to the substantive reasonableness of his sentence,

we review for plain error. Mondragon-Santiago, 564 F.3d at 361.

When selecting a defendant’s sentence, the district court must make an

individualized assessment based on the facts presented. Gall, 552 U.S. at 50. 

Here, the record shows that the district court made the proper individualized

assessment. The court adopted the PSR and considered the parties’ arguments

regarding the proper sentence, particularly whether the instant sentence should

be served concurrently or consecutively with Orr’s undischarged sentence. The

district court also considered the § 3553(a) factors and detailed how the sentence

imposed satisfied those factors. Although Orr suggests that the district court

should have reduced the sentence on his bank robbery count to account for the

consecutive statutory minimum sentence, the sentence imposed for Orr’s bank

robbery offense was within the guidelines range, and Orr has not proffered an

adequate argument for why this sentence was unreasonable. See Candia, 454

F.3d at 473. Orr’s disagreement with his sentence does not suffice to rebut the

presumption of reasonableness that attaches to it. See United States v. Ruiz, 621

F.3d 390, 398 (5th Cir. 2010). 

Accordingly, the district court’s judgment is AFFIRMED.

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