United States v. Jose Velez , 354 F. App'x 73 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2009
No. 09-40185
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MATILDE VELEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:08-CR-728-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Velez challenges his within-guideline sentence. He argues that the
district court committed significant procedural error in failing to provide an ade-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40185
quate explanation for the sentence. He further avers that the sentence is sub-
stantively unreasonable. He concedes that he did not raise these arguments in
the district court, but he seeks to preserve for possible further review his con-
tention that review should not be limited to plain error.
Because Velez did not raise these arguments in the district court, we re-
view for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009), cert. denied, 2009 WL 1849974 (Oct. 5, 2009) (No. 08-11099);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128
S. Ct. 2959 (2008). To show plain error, Velez must show an error that is clear
or obvious and that affects his substantial rights. 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.Velez does not explain how his sentence might have differed had the dis-
trict court provided an explanation. Even if he has identified clear or obvious
error with respect to the adequacy of the explanation, he has not shown that the
error affected his substantial rights. See Mondragon-Santiago, 564 F.3d at 364-
65. He argues that the district court’s “failure to address his nonfrivolous miti-
gation arguments deprived this Court of the ability to conduct a thorough analy-
sis of the substantive reasonableness of the sentence.” As he acknowledges, how-
ever, this argument is foreclosed by Mondragon-Santiago, 564 F.3d at 365. Be-
cause Velez has not shown that the error, if any, affected his substantial rights,
he has not shown plain error. See id. at 364-65; Baker, 538 F.3d at 332.
Velez’s within-guideline sentence is afforded a presumption of reasonable-
ness. Rita v. United States, 551 U.S. 338, 347 (2007). His appellate arguments
amount to a disagreement with the district court’s weighing of the 18 U.S.C.
§ 3553(a) factors and the appropriateness of the sentence. “[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.” United States v. Campos-Mal-
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No. 09-40185
donado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). Velez
has not shown that his sentence is substantively unreasonable, nor has he rebut-
ted the presumption of reasonableness that attaches to a within-guideline sen-
tence. See Rita, 551 U.S. at 347.
AFFIRMED.
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