     Case: 09-41222     Document: 00511195370          Page: 1    Date Filed: 08/05/2010




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

                                                 FILED
                                                                           August 5, 2010
                                     No. 09-41222
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROLANDO ROEL-VILLAGOMEZ, also known as Alejandro Roel-Villagomez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:09-CR-1172-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Rolando     Roel-Villagomez       appeals     his    sentence     of   37    months’
imprisonment, imposed following his guilty-plea conviction for being an alien
found unlawfully in the United States after having previously been removed.
See 8 U.S.C. § 1326. He contends: the district court committed procedural error
by failing to explain sufficiently its reasons for rejecting his request for a
downward variance from the advisory Guideline sentencing range; and, his
sentence is substantively unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41222    Document: 00511195370 Page: 2         Date Filed: 08/05/2010
                                 No. 09-41222

      Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 552 U.S. 38, 50–51 (2007).       In that respect, 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); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Accordingly, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 752-53. If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion.    Id. at 751-53.   “[A] sentence within a properly
calculated Guideline range is presumptively reasonable”.          United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      “[W]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation”. Rita v. United
States, 551 U.S. 338, 356 (2007). The requirement that the district court explain
its sentence may be satisfied by the district court’s listening to the parties’
contentions and then indicating that a sentence within the Guidelines range is
appropriate. Id. at 357-59. Here, the district court heard Roel’s contentions,
rejected them, and stated that a sentence within the advisory Guidelines range
satisfied the factors of 18 U.S.C. § 3553(a). Accordingly, the district court’s
explanation of the sentence, although brief, was legally sufficient. See Rita, 551
U.S. at 358-59.
      For substantive reasonableness, as noted, “[a] discretionary sentence
imposed within a properly calculated Guidelines range is presumptively
reasonable”. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.),

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   Case: 09-41222   Document: 00511195370 Page: 3      Date Filed: 08/05/2010
                                No. 09-41222

cert denied, 129 S. Ct. 328 (2008). That this court “might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51. Roel has presented “no
reason to disturb” the presumption of reasonableness in this case. See United
States v. Rodriguez, 523 F.3d 519, 526 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008).
      AFFIRMED.




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