589 F. App'x 292
5th Cir.
2015

OPERATING TECHNICAL ELECTRONICS, INCORPORATED, Plaintiff-Appellee, v. GENERAC POWER SYSTEMS, INCORPORATED, Defendant-Appellant.

No. 14-10412.

United States Court of Appeals, Fifth Circuit.

Jan. 8, 2015.

Randy Alan Nelson, Esq., Michael Alan Yanof, Esq., Attorney, Thompson, Coe, Cousins & Irons, L.L.P., Robert W. Buchholz, Law Office of Robert W. Buchholz, Dallas, TX, for Plaintiff-Appellee.

Robert K. Radcliff, Weinstein Radcliff, L.L.P., Dallas, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

This is an ordinary contract dispute governed by the Texas version of the Uniform Commercial Code, brought to federal court via diversity jurisdiction. The issue, broadly stated, is which actions during the negotiations constituted the offer and acceptance that formed a binding contract.

We have reviewed the briefs, pertinent parts of the record, and the applicable law and have heard the helpful arguments of counsel. There is no error. The district court properly decided that the January 21, 2008, email from the plaintiff was the initial offer, so those terms applied, and that offer expressly limited acceptance to all of its terms. Defendant‘s purchase order, sent on February 1, served as an acceptance of those terms, which plaintiff confirmed on February 8. We therefore need not make an Erie guess as to whether Texas applies the “knockout rule” to such negotiations.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Francisco RODRIGUEZ, Defendant-Appellant.

No. 14-20105

United States Court of Appeals, Fifth Circuit.

Jan. 8, 2015.

Summary Calendar.

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Thomas S. Berg, Esq., Mallett & Saper, L.L.P., Houston, TX, for Defendant-Appellant.

Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Francisco Rodriguez challenges the 168-month sentence imposed for his conviction for possession, with intent to distribute, 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He claims the sentence is procedurally unreasonable because the district court failed to adequately explain it.

Although post-Booker, the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the advisory Guidelines-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court, 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).

But, Rodriguez did not raise this issue in district court; therefore, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain (clear or obvious) error that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the error, but should do so only if it seriously affects the fairness, integrity, or public reputation of the proceedings. Id.

At sentencing, the district court stated that it had considered the 18 U.S.C. § 3553(a) sentencing factors. In any event, because the sentence imposed was within the advisory-Guidelines-sentencing range, little explanation of the sentence was required, Rita v. United States, 551 U.S. 338, 356-57 (2007); and our court will infer the district court considered the § 3553(a) sentencing factors, e.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Therefore, even assuming arguendo the district court erred, Rodriguez has not shown that his substantial rights were affected. E.g., United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir. 2009).

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Darryl K. TAYLOR, Defendant-Appellant.

No. 13-11018

United States Court of Appeals, Fifth Circuit.

Jan. 8, 2015.

Summary Calendar.

James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

Notes

*
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. 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.