     Case: 17-60493      Document: 00514389706         Page: 1    Date Filed: 03/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-60493
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          March 16, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

RICARDO AGUILAR-GONZALEZ, also known as Ritchie,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:16-CR-38-3


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ricardo Aguilar-Gonzalez pleaded guilty, pursuant to a written plea
agreement, to conspiracy to distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 21
U.S.C. § 846 (Count 1), and conspiracy to travel in interstate commerce with
intent to distribute the proceeds of an unlawful activity, in violation of 18
U.S.C. § 371 and 18 U.S.C. § 1952 (Count 2). In a supplement to the plea


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60493

agreement, Aguilar-Gonzalez agreed to waive “all rights of appeal” in the event
that the Government filed a U.S.S.G. § 5K1.1 motion and the motion was
granted. The Government filed a § 5K1.1 motion, and the court granted the
motion and thereafter sentenced Aguilar-Gonzalez to a below-guidelines
sentence of 168 months of imprisonment as to Count 1 and 60 months of
imprisonment as to Count 2.
      Aguilar-Gonzalez argues that his 168-month sentence was substantively
unreasonable. The Government counters that Aguilar-Gonzalez’s appellate
waiver bars this appeal. This court reviews de novo the enforceability of an
appeal waiver. United States v. Scallon, 683 F.3d 680, 682 (5th Cir. 2012). “A
defendant may waive his statutory right to appeal as part of a valid plea
agreement, provided (1) his or her waiver is knowing and voluntary, and (2)
the waiver applies to the circumstances at hand, based on the plain language
of the agreement.” Id. However, in the absence of the transcripts necessary
for a review of whether the waiver was knowing and voluntary, as is the case
here, this court will not consider the issue. See Powell v. Estelle, 959 F.2d 22,
26 (5th Cir. 1992) (noting that party raising an issue has duty to provide record
relating to that issue).
      This court reviews sentences, whether inside or outside the Guidelines,
for reasonableness in light of the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and reviews the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38,
51 (2007). This court has determined that a sentence within or below the
calculated guidelines range is entitled to a presumption of reasonableness.
United States v. Simpson, 796 F.3d 548, 557 & n.51 (5th Cir. 2015). “The
presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant



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                                 No. 17-60493

weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009).
      In this case, the district court relied on appropriate § 3553(a) factors in
determining the sentence. Nothing suggests that the district court failed to
consider a factor that should have received significant weight, gave significant
weight to an improper factor, or made a clear error of judgment in balancing
the sentencing factors. See Cooks, 589 F.3d at 186. Accordingly, his sentence
is AFFIRMED.




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