Case: 12-40455       Document: 00512153241         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 12-40455
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

DAVID GARCIA-ROQUE,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1868-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Garcia-Roque (Garcia) appeals from his conviction of being found
illegally in the United States.           He contends that his 46-month term of
imprisonment and his three-year term of supervised release are procedurally
and substantively unreasonable.
       He further raises the following errors, which he correctly recognizes are
foreclosed by this court’s caselaw but nevertheless seeks to preserve for further
review. First, he contends that his sentence of supervised release constituted an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40455

upward departure in light of U.S.S.G. § 5D1.1(c) and that the district court failed
to notify him that it was contemplating such a departure. See United States v.
Dominguez-Alvarado, 

, 328-29 (5th Cir. 2012) (foreclosing
contention). Second, he contends that sentences calculated using § 2L1.2 are not
entitled to a presumption of correctness because that section is flawed. See
United States v. Mondragon-Santiago, 

, 366-67 (5th Cir. 2009)
(foreclosing contention). Third, he contends that his argument against the
substantive reasonableness of his supervised release term should not be
reviewed under the plain error standard despite his failure to object to the
sentence on that ground. See United States v. Whitelaw, 

, 259-60
(5th Cir. 2009) (foreclosing contention).
      As for his contentions that are not foreclosed, Garcia contends that his
terms of imprisonment and supervised release were procedurally unreasonable
because the district court failed to provide adequate explanations for them.
Garcia did not raise a challenge to the procedural reasonableness of his sentence,
but, as to his term of imprisonment only, he sought a downward departure or
variance from the guidelines sentencing range on the same factors he now
argues render the sentence procedurally unreasonable. We need not determine
the standard of review applicable to that contention, as it fails under
reasonableness review or plain error review. See United States v. Rodriguez, 

, 525 (5th Cir. 2008). Garcia’s argument that his term of supervised
release was procedurally unreasonable is reviewed under the plain error
standard. See 

.
      The term of imprisonment was within the guideline sentencing range.
Garcia sought a downward departure or variance on what he argued was the
benign nature of his previous conviction of conspiring to harbor an alien and his
benign motive for reentering the United States, i.e., his desire to financially
assist his family while his wife received treatment for cancer. The district court
addressed both of these concerns adequately when determining that a sentence

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                                 No. 12-40455

within the guideline range was appropriate. See Rita v. United States, 

, 356 (2007).
      The term of supervised release also was within the guideline sentencing
range. Garcia argues that the explanation provided by the district court was
inadequate, i.e., that supervised release was appropriate due to Garcia’s
children’s status as American citizens, Garcia’s desire to care for his children,
and the likelihood that Garcia would reenter the United States. The district
court did not err in finding that a term of supervised release would satisfy the
need for “an added measure of deterrence and protection.” See Dominguez-

.
      Garcia’s sentences of imprisonment and supervised release are
presumptively reasonable. See United States v. Alonzo, 

, 554 (5th
Cir. 2006). Garcia contends that his sentences are substantively unreasonable
for essentially the same reasons he argues the district court’s proffered reasons
rendered the sentences procedurally unreasonable. As for the sentence of
imprisonment, Garcia has not shown that the district court erred in weighing
and balancing the factors relevant to his sentence. See United States v. Cooks,

, 186 (5th Cir. 2009). As for the sentence of supervised release,
Garcia cannot demonstrate error, plain or otherwise.
      AFFIRMED.




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