Case: 16-40859      Document: 00513876280         Page: 1    Date Filed: 02/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-40859                                 FILED
                                  Summary Calendar                        February 15, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE FRANCISCO DOMINGUEZ-ALFARO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1098-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jose Francisco Dominguez-Alfaro appeals his within-guidelines sentence
of 50 months of imprisonment imposed following his guilty-plea conviction of
illegal reentry into the United States after deportation. 8 U.S.C. § 1326(a),
(b)(2). According to Dominguez-Alfaro, the district court committed procedural
error by failing to recognize that it had the authority to grant his motion for a
downward variance, based on then pending amendments to U.S.S.G. § 2L1.2.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40859       Document: 00513876280   Page: 2   Date Filed: 02/15/2017



                                  No. 16-40859
      In reviewing Dominguez-Alfaro’s unpreserved claim of procedural error
we consider first whether the district court erred, whether the error was clear
or obvious, and whether the error affected Dominguez-Alfaro’s substantial
rights. See United States v. Narez-Garcia, 

, 150 (5th Cir.), cert.
denied, 

(2016). If we find in the affirmative as to the these three
factors, then we have the discretion to correct the error, but will only exercise
our discretion “if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” 

v. United States, 

, 135 (2009)).
      According to Dominguez-Alfaro, the district court’s statement that it
“should sentence pursuant to the Guidelines in existence of as of the date [of]
sentencing,” shows that the district court believed it lacked the discretion to
sentence him below the guideline range.           The district court, however,
additionally considered the particular facts of his case, the arguments he
presented in favor of a downward variance, the advisory guidelines range, and
the 18 U.S.C. § 3553(a) factors. See § 3553(a); Gall v. United States, 

, 49-51 (2007). Moreover, the district court specifically noted that it was
applying the Sentencing Reform Act of 1984 as modified by United States v.
Booker, 

(2005), which rendered the Guidelines advisory only.
Dominguez-Alfaro has failed to show that that the district court committed
reversible plain error. See 

; 

.
   AFFIRMED.




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