Case: 10-50043       Document: 00511248011          Page: 1    Date Filed: 09/29/2010




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

                                                 FILED
                                                                        September 29, 2010
                                     No. 10-50043
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

DARWIN GALINDO-YANES,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas
                                 No. 2:09-CR-165-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Darwin Galindo-Yanes pleaded guilty to violating 8 U.S.C. § 1326(a) by
having been found unlawfully present in the United States after deportation fol-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50043    Document: 00511248011 Page: 2       Date Filed: 09/29/2010
                                 No. 10-50043

lowing an aggravated-felony conviction. The district court sentenced him under
§ 1326(b)(2), at the bottom of the guideline range, to 37 months of imprisonment.
      Galindo-Yanes argues that the court treated the range as presumptively
reasonable when it directed defense counsel to be more specific in objecting to
the range. Because Galindo-Yanes failed to object on that basis, we review this
claim for plain error. See United States v. Mondragon-Santiago, 

,
360 (5th Cir.), cert. denied, 

(2009). Galindo cannot show error,
plain or otherwise, because the district court merely sought to comply with the
reasoning in Rita v. United States, 

, 356-57 (2007).
      Galindo-Yanes also contends, as he did in the district court, that his sen-
tence is substantively unreasonable because his prior crimes of violence that
were used to support the 16-level enhancement are so old. “[A] sentence within
a properly calculated Guideline range is presumptively reasonable.” United
States v. Alonzo, 

, 554 (5th Cir. 2006). Although the prior crimes
were too old to receive criminal history points, Galindo-Yanes does not dispute
that he had three prior convictions for crimes of violenceSSconvictions for aggra-
vated assault and aggravated battery in 1988 and a 1992 conviction for taking
indecent liberties with a minor child. Galindo-Yanes illegally reentered the
United States in January 2009, only eight months after his April 2008 depor-
tation, and he admitted using cocaine from 2000 to 2007. Thus, the totality of
the circumstances shows that the district court did not abuse its discretion by
denying a downward variance and sentencing within the guidelines range. See
Gall v. United States, 

, 51 (2007); see also 

.
      AFFIRMED.




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