United States v. Francisco Rodriguez , 589 F. App'x 292 ( 2015 )

Case: 14-20105 Document: 00512894300 Page: 1 Date Filed: 01/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20105 FILED
Summary Calendar January 8, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FRANCISCO RODRIGUEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-744-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Francisco Rodriguez challenges the 168-month sentence imposed for his
conviction for possession, with intent to distribute, 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He claims the
sentence is procedurally unreasonable because the district court failed to
adequately explain it.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-20105 Document: 00512894300 Page: 2 Date Filed: 01/08/2015
No. 14-20105
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
But, Rodriguez did not raise this issue in district court; therefore, review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, he must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.At sentencing, the district court stated that it had considered the 18
U.S.C. § 3553(a) sentencing factors. In any event, because the sentence
imposed was within the advisory-Guidelines-sentencing range, little
explanation of the sentence was required, Rita v. United States, 551 U.S. 338,
356-57 (2007); and our court will infer the district court considered the
§ 3553(a) sentencing factors, e.g., United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005). Therefore, even assuming arguendo the district court erred,
Rodriguez has not shown that his substantial rights were affected. E.g., United
States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).
AFFIRMED.
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