IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 2, 2008
No. 07-40957
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERTO BLANCO RUBIO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-377-1
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Roberto Blanco Rubio pleaded guilty to illegal reentry into the United
States subsequent to being deported after conviction of a felony, in violation of
8 U.S.C. § 1326. He was sentenced to a within-Guidelines sentence of 78 months
of imprisonment and three years of supervised release.
Rubio maintains his sentence is procedurally unreasonable because the
district court did not assign sufficient reasons to support the sentence it
imposed. Rubio does not challenge the substantive reasonableness of his
*
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should not be published and is not precedent except under the limited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.
No. 07-40957
sentence. By not objecting to the district court’s failure to give specific reasons
for the sentence, Rubio has relegated his claim to plain-error review. United
States v. Lopez-Velasquez, 07-10151 & 07-10321, 2008 WL 1874577, at *1 (5th
Cir. 29 Apr. 2008); United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th Cir.
2000).
“[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation”. Rita v. United
States, 127 S. Ct. 2456, 2468 (2007). In Rita, the Court acknowledged the
district court judge might have said more than that the range was not
“inappropriate” and that a sentence at the bottom of the range was
“appropriate”, but was not required to do so. Id. at 2469.
Rubio’s sole objection to the presentence investigation report (PSR) was
that the penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional, a
contention that is foreclosed. See United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872 (2008). At sentencing, Rubio
requested a below-Guidelines sentence based on his family situation and
background. When sentenced, Rubio was 39 years old, married, and the step-
father of an 11 year-old boy. Rubio attended school in Mexico for only two years
and worked in construction. After hearing Rubio’s request for leniency, the
district court adopted the PSR’s findings and recommendation and imposed the
sentence.
In the light of the statement found sufficient by the Court in Rita and the
scant assertion Rubio advanced in support of a below-Guidelines sentence, Rubio
has not shown the explanation given by the district court was clear or obvious
error that affected the outcome of the proceedings, and has, therefore, not
demonstrated plain error. See United States v. Olano, 507 U.S. 725, 734 (1993);
Izaguirre-Losoya, 219 F.3d at 441.
AFFIRMED.
2