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

No. 10-50865 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. NATHANIEL ADONIZ DIAZ-ARIAS, also known as Fernando HernandezG o n z al e z , al s o kno wn as Nathaniel Diaz-Arias, also known as Ado ni z D i a z - Ari a s , Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-456-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Nathaniel Adoniz Diaz-Arias (Diaz) was convicted of illegal reentry after

remo v a l

. D i az appeals his within-guidelines sentence. He argues that his sentence is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing listed i n 1 8 U.S.C. § 3553(a). The district court considered Diaz’s request for leniency, but it ultimately determined that

a 57-month sentence was appropriate. Diaz’s mere disagreement wi t h th e 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 Sep tem ber 6 , 20 11 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: 10-50865 Document: 00511592671 Page: 1 Date Filed: 09/06/2011No. 10-50865

p ropriety of the sentence imposed does not suffice to rebut the presu m p t i o n o f reasonableness that attaches to a within-guidelines sentence. Cf. United States

v. Gomez-Herrera , 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Rodriguez , 523 F.3d 519, 526 (5th Cir. 200 8). Diaz also argues that his sentence is procedurally unreasonable because t h e d i s t rict court plainly erred by failing to adequately explain his sentence. Because Diaz did not raise this argument in the district court, we review the issue for plain error only. See United States v. Ronquillo , 508 F.3d 744, 748 (5th Cir. 2007). To show plain error, a defendant 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 he makes such a showing, this court has the discretion to correct t h e error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Diaz cannot show that any error of the district court in failing to adequately explain h i s s e n t e n ce affected his substantial rights because nothing in the re c o r d indicates that a
more extensive explanation would have changed his 57-month s e ntence. See United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009). In addition, Diaz contends that the district court plainly erred by failing to asc e r t ain whether he reviewed the presentence report (PSR) with counsel. Diaz cannot show that the district court’s failure to ascertain whether he reviewed the PSR with counsel affected his substantial rights because he did not object to anything contained in the PSR and because the district court provided him the opportunity to address any sentencing issues at the sentencing hearing. See United States v. Esparza-Gonzales, 268 F.3d 272, 274 (5th Cir. 2001)

. Thus, the judgment of the district court is AFFIRMED.

2 Case: 10-50865 Document: 00511592671 Page: 2 Date Filed: 09/06/2011