United States v. Garcia-Juarez

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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50096
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FELIPE GARCIA-JUAREZ, also known as Juarez Garcia, also known as Felipe
Juarez, also known as Chongo, also known as Felipe Garcia,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 5:08-CR-503-ALL


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Felipe Garcia-Juarez (Garcia) challenges the 28-month within-guidelines
sentence imposed following his conviction for illegal reentry into the United
States.     8 U.S.C. § 1326(a), (b)(1).          Garcia argues that his sentence is
substantively unreasonable because it is greater than necessary to meet the
sentencing goals in 18 U.S.C. § 3553(a).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50096

      We generally “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 51 (2007).   Because Garcia did not challenge the reasonableness of his
sentence in the district court, however, our review is limited to plain error. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To show plain
error, Garcia must show an error that is clear or obvious and that affects his
substantial rights. See United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). This court will correct such an error only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. Under either the abuse of discretion standard or plain error,
however, Garcia is not entitled to relief. See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
      Garcia’s within-guidelines sentence is afforded a presumption of
reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007); United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129
S. Ct. 328 (2008). The record reflects that the district court did not commit
error, plain or otherwise, in determining that a sentence of 28 months of
imprisonment would satisfy the sentencing objectives of § 3553(a). Garcia has
not shown that his sentence was substantively unreasonable, see Gall, 552 U.S.
at 51, nor has he rebutted the presumption of reasonableness that attaches to
his within-guidelines sentence. See Rita, 551 U.S. at 347.
      AFFIRMED.




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