United States v. Alberto Rivera-Nevarez , 609 F. App'x 209 ( 2015 )


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  •      Case: 14-11156      Document: 00513096933           Page: 1   Date Filed: 06/29/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-11156
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    June 29, 2015
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    ALBERTO RIVERA-NEVAREZ,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 5:14-CR-57-1
    Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
    PER CURIAM: *
    Alberto    Rivera-Nevarez       appeals     the    27-month     within-guidelines
    sentence he received following his guilty plea to illegal reentry, in violation of
    
    8 U.S.C. § 1326
    . For the first time on appeal, he contends that his sentence is
    procedurally unreasonable because the district court failed to adequately
    explain the reasons for the sentence imposed, specifically failing to address his
    mitigation argument.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-11156     Document: 00513096933     Page: 2    Date Filed: 06/29/2015
    No. 14-11156
    Because Rivera-Nevarez did not raise the objection below, review is for
    plain error only. See United States v. Mondragon-Santiago, 
    564 F.3d 357
    , 361
    (5th Cir. 2009). To establish plain error, Rivera-Nevarez must show a forfeited
    error that is clear or obvious and that affects his substantial rights. Puckett v.
    United States, 
    556 U.S. 129
    , 135 (2009). Even if he makes such a showing, this
    court has the discretion to correct the error but will do so only if it seriously
    affects the fairness, integrity, or public reputation of judicial proceedings. 
    Id.
    Given that the sentence imposed was within the guidelines range, little
    explanation of the sentence was required, and the district court’s statement, in
    response to Rivera-Nevarez’s plea for a more lenient sentence, that a sentence
    at the high end of the guidelines range was necessary for just punishment and
    deterrence was sufficiently explanatory. See Rita v. United States, 
    551 U.S. 338
    , 356-57 (2007). Moreover, even if it is assumed that the district court’s
    statement amounted to clear or obvious error, the error is not reversible given
    that Rivera-Nevarez has not shown that his substantial rights were affected.
    See United States v. Whitelaw, 
    580 F.3d 256
    , 262-63 (5th Cir. 2009);
    Mondragon-Santiago, 
    564 F.3d at 365
    . To the extent that Rivera-Nevarez
    argues that Whitelaw was wrongly decided, the argument is unavailing. See
    United States v. Walker, 
    302 F.3d 322
    , 325 (5th Cir. 2002).
    The judgment of the district court is AFFIRMED.
    2