Case: 09-11230 Document: 00511276124 Page: 1 Date Filed: 10/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2010
No. 09-11230
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO SALGADO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CR-57-1
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Mario Salgado pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to 63 months of imprisonment
and three years of supervised release. Salgado appeals his sentence, arguing
that the district court’s 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). Salgado acknowledges that this court reviews for plain error
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-11230 Document: 00511276124 Page: 2 Date Filed: 10/27/2010
No. 09-11230
when 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. Because Salgado
did not object to the district court’s failure to explain the sentence, plain error
review applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
The district court’s failure to explain the within-guidelines sentence
beyond referring to punishment and deterrence was not error under Rita that
was clear or obvious based on Salgado’s arguments that the guideline range was
appropriate and for a sentence at the low end of the guidelines. See United
States v. Rodrigeuz, 523 F.3d 519, 525-26 (5th Cir. 2008). Salgado did not clearly
ask for a sentence below the guideline range. However, even if there was clear
or obvious error, Salgado has not shown that the error affected his substantial
rights. Although Salgado argues that there was a reasonable probability that
fuller consideration of his arguments would have led the court to impose a lower
sentence, he has not shown that an explanation for the rejection of his
arguments would have changed his within-guidelines sentence. See Mondragon-
Santiago, 564 F.3d at 365. There is no reversible plain error, and the district
court’s judgment is AFFIRMED.
2