IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-40780
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANGEL CASTRO-NEPOMUNCENO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-193-1
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Angel Castro-Nepomunceno (Castro) appeals his 24-month sentence
following his guilty plea to illegal reentry. He argues that the district court
violated F ED. R. C RIM. P. 32(i)(3)(B) when it did not make a specific ruling or
finding on his request for a downward adjustment for time spent in state
custody. Castro failed to object at sentencing to the district court’s
noncompliance with Rule 32. We review for plain error. See United States v.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40780
Reyna, 358 F.3d 344, 349-50 (5th Cir. 2004) (en banc). Because the district court
adopted the presentence report (PSR) and having considered the record as a
whole, we are not left to second guess the basis for the district court’s refusal to
depart downward. See United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir.
1994).
Castro argues that the district court, in failing to rule on his motion for
downward departure and in not adequately explaining the basis for the sentence,
committed a “significant procedural error.” An appellate court’s review of a
sentence must start with whether the district court committed any “significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Gall v. United States, 128
S. Ct. 586, 597 (2007). Because Castro did not raise this argument in the district
court, review is limited to plain error. See United States v. Izaguirre-Losoya, 219
F.3d 437, 441 (5th Cir. 2000).
At sentencing, the district court specifically stated that it considered the
§ 3553(a) factors and that a sentence within the guidelines range satisfied the
objectives of § 3553. The district court committed no procedural error. See Rita
v. United States, 127 S. Ct. 2456, 2468 (2007).
We are without jurisdiction to consider Castro’s argument that the district
court erred in denying his motion for a downward departure as there is no
indication in the record that the district court was under the mistaken
impression that it could not depart. See United States v. Hernandez, 457 F.3d
416, 424 (5th Cir. 2006). We retain jurisdiction to review “whether the district
court’s imposition of a guideline sentence instead of a non-guideline sentence
was reasonable.” United States v. Nikonova, 480 F.3d 371, 375 (5th Cir.), cert.
denied, 128 S. Ct. 163 (2007). Because Castro did not object in the district court
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No. 08-40780
to the unreasonableness of his sentence, review is for plain error. See United
States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008).
If the sentencing judge imposes a sentence within a properly-calculated
guidelines range, the sentence is entitled to a presumption of reasonableness.
See Rita, 127 S. Ct. at 2462. The district court imposed a sentence at the bottom
of the properly-calculated guidelines range after considering the § 3553(a)
factors. Castro has failed to show that the sentence is unreasonable. The
sentence is affirmed.
AFFIRMED.
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