IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2008
No. 07-20842
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARIO ANTONIO CASTILLO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-72-ALL
Before JONES, Chief Judge, and STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Mario Antonio Castillo appeals the 57-month sentence he received as a
result of a guilty plea conviction for illegal reentry following a deportation
occurring subsequent to an aggravated felony. Castillo contends that his
sentence is cruel and unusual and grossly disproportionate to his offense, in light
of the age of his prior conviction and his relatively law-abiding behavior upon his
return to the United States. Because Castillo did not object to his sentence or
the applicable guideline range on Eighth Amendment grounds, we review for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20842
plain error. See United States v. Martinez, 496 F.3d 387, 389 (5th Cir.), cert.
denied, 128 S. Ct. 728 (2007). Castillo has not established that his 57-month
sentence, within the applicable guideline range, was disproportionately harsh.
See Rummel v. Estelle, 445 U.S. 263, 284-85 (1980); United States v. Cardenas-
Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).
Castillo contends that requiring a party to show extraordinary
circumstances before imposing a sentence outside the applicable guideline range
reinstates the mandatory guideline scheme invalidated in United States v.
Booker, 543 U.S. 220 (2005). We review this claim for plain error because
Castillo did not raise it below. See United States v. Campos-Maldonado,
531 F.3d 337, 339 (5th Cir. 2008). Nothing in the record reflects that the district
court felt constrained by this court’s precedent prior to Gall v. United States,
128 S. Ct. 586 (2007), to impose a guideline sentence, and Castillo thus has not
shown reversible plain error. See id. To the extent that Castillo is arguing that
his sentence is substantively unreasonable, his sentence at the bottom of the
applicable guideline range is presumptively reasonable and should be upheld.
See Gall, 128 S. Ct. at 597; Rita v. United States, 127 S. Ct. 2456, 2468 (2007);
United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008).
Castillo also contends that his sentence violates the Equal Protection
Clause because his high total offense level results in the same sentence as
imposed on individuals with higher criminal history categories and because he
has received a higher sentence than an individual who illegally reenters the
United States but does not have a prior aggravated felony. He has not
established that “other persons similarly situated as is the claimant unfairly
enjoy benefits that he does not or escape burdens to which he is subjected.”
United States v. Cronn, 717 F.2d 164, 169 (5th Cir. 1983); see also Cardenas-
Alvarez, 987 F.3d at 1134. The judgment of the district court is thus
AFFIRMED.
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