IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-11217

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE FELICIANO SALDANA-MARTINEZ, also known as Jose SoldanaMartinez, also known as Jose F. Saldana-Martinez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:09-CR-73-1

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Jose Feliciano Saldana-Martinez appeals the sentence imposed following

the revocation of his supervised release. He contends that the district court’s

complete failure to explain the sentence and address his nonfrivolous arguments

in support of a lower sentence did not satisfy the requirements of procedural

reasonableness under Rita v. United States, 551 U.S. 338, 356-57 (2007).

Saldana-Martinez acknowledges that this court applies plain error review when

United States Court of Appeals

Fifth Circuit

F I L E D

August 30, 2010

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.

Case: 09-11217 Document: 00511218736 Page: 1 Date Filed: 08/30/2010
No. 09-11217

a defendant fails to object to the district court’s failure to explain the sentence.

Nevertheless, he seeks to preserve for further review his contention that an

objection is not required when it is premised on the district court’s failure to

address arguments in support of a lower sentence. Alternatively, he argues that

the strict application of the plain error standard should be mitigated by defense

counsel’s specific and explicit request that the district court consider an

underlying sentencing error when determining his revocation sentence. Because

Saldana-Martinez did not object to the district court’s failure to explain the

revocation sentence in the district court, plain error review applies. See United

States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).

The district court’s failure to explain the within-guidelines sentence

imposed upon revocation of Saldana-Martinez’s supervised release was error

under Rita that was clear or obvious. See United States v. Mondragon-Santiago,

564 F.3d 357, 364 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). However,

Saldana-Martinez has not shown that the error affected his substantial rights.

In Mondragon-Santiago, this court rejected the defendant’s argument that the

district court’s failure to explain the sentence affected his substantial rights

because it made meaningful appellate review impossible, holding that the

argument was foreclosed by circuit precedent, “so far as within-Guidelines

sentences [were] concerned.” Id. at 365. Further, although Saldana-Martinez

argues that there was a reasonable probability that more extensive

consideration of his argument regarding the underlying sentencing error would

have led the court to agree that he should not have been treated as a category

II offender, he has not shown that an explanation would have changed his

within-guidelines sentence. See id. Therefore, there is no reversible plain error,

and the district court’s judgment is AFFIRMED.

2

Case: 09-11217 Document: 00511218736 Page: 2 Date Filed: 08/30/2010