Case: 09-40929     Document: 00511116589          Page: 1    Date Filed: 05/19/2010




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

                                                  FILED
                                                                            May 19, 2010
                                     No. 09-40929
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE GIOVANNI GRANADOS-REYES,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-399-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Giovanni Granados-Reyes appeals the 57-month sentence imposed in
connection with his guilty-plea conviction for being found in the United States
following deportation in violation of 8 U.S.C. § 1326. For the first time on
appeal, Granados-Reyes argues that his sentence is procedurally and
substantively unreasonable because the district court presumed that a sentence
within the applicable sentencing guidelines range was reasonable.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40929    Document: 00511116589 Page: 2        Date Filed: 05/19/2010
                                 No. 09-40929

      Generally, this court reviews the sentence imposed for reasonableness in
light of the factors set forth in 18 U.S.C. § 3553(a). United States v. Mares, 

, 519-20 (5th Cir. 2005). In reviewing a sentence for reasonableness,
this court first determines whether the district court’s sentencing decision is
procedurally sound and then determines whether the sentence is substantively
reasonable. Gall v. United States, 

, 49-51 (2007). If a defendant fails
to object to an error at sentencing, this court will review the district court’s
actions for plain error only. United States v. Olano, 

, 731-37 (1993)
As Granados-Reyes did not preserve his presumption-of-reasonableness
argument in the district court, this court will review the district court’s actions
for plain error only. See United States v. King, 

, 1144 (5th Cir.
2008), cert. denied, 

(2009).
      The Supreme Court has explained that “the sentencing court does not
enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Rita v. United States, 

, 351 (2007). A sentencing court
cannot require that exceptional circumstances be present to justify imposing a
sentence that is outside of the guidelines range. 

. Contrary
to Granados-Reyes’s argument, nothing in the district court’s remarks shows
that he was required to overcome a presumption that the Guidelines range was
reasonable or required to prove “extraordinary circumstances” before the district
court would impose a non-Guidelines sentence.          Granados-Reyes has not
established that the district court erred, much less plainly erred, by applying a
presumption of reasonableness to his advisory sentencing guidelines range. See

.
      The district court’s judgment is AFFIRMED.




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