     Case: 10-20737     Document: 00511635647         Page: 1     Date Filed: 10/18/2011




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

                                                                            FILED
                                                                         October 18, 2011
                                     No. 10-20737
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

EUGENIO OSORIO-MARROQUIN

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-706-1


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
        A jury found Eugenio Osorio-Marroquin (Osorio) guilty of aiding and
abetting the possession with intent to distribute 50 grams or more of
methamphetamine and importing 50 grams or more of methamphetamine.
Osorio argued for a sentence below the recommended range based on his medical
condition, age, lack of recent criminal history, and the fact that he was allegedly
forced to smuggle methamphetamine into this country by a Mexican gang.
Osorio was 60 years old at the time of sentencing and is allegedly suffering from

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20737   Document: 00511635647      Page: 2   Date Filed: 10/18/2011

                                  No. 10-20737

prostate cancer. The district court denied the motion and sentenced Osorio to
a within-guidelines sentence of 235 months in prison.
      Osorio argues that he received an unreasonable sentence because his
sentence amounts to a life sentence based on the fact that he is 60 years old and
has cancer. Because Osorio did not object to the substantive reasonableness of
his sentence, review is for plain error. See United States v. Whitelaw, 580 F.3d
256, 259-60 (5th Cir. 2009). We presume that a within-range sentence is
reasonable. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
      Although physical condition is not usually relevant in determining
whether a departure is warranted, “an extraordinary physical impairment may
be a reason to impose a sentence below the applicable guideline range.” U.S.S.G.
§ 5H1.4. Osorio presented no evidence in the district court establishing that he
has prostate cancer, and although his physical condition could support a
sentence below the guidelines range, he cannot show that it would mandate one
under the precedent of this circuit.     See, e.g., United States v. Rodriguez,
523 F.3d 519, 526 (5th Cir. 2008) (determining that a below-guidelines sentence
was not warranted for a defendant who suffered from sickle cell amenia,
Hepatitis C, blackouts, and upper respiratory illness). Likewise, Osorio presents
no arguments suggesting that he is sufficiently infirm for his age to have been
taken into account.    See § 5H1.1.     The district court listened to Osorio’s
arguments that he should receive a sentence below the guidelines range but was
not persuaded. The district court specifically noted that the evidence of Osorio’s
guilt was overwhelming and that he had argued for the first time in sentencing
that he was coerced into smuggling the drugs by a Mexican gang.
      On appeal, Osorio has not presented anything to overcome the
presumption that the district court imposed a reasonable sentence. See Duarte,
569 F.3d at 529-31. Osorio therefore has failed to demonstrate error, plain or
otherwise, as to the reasonableness of his sentence. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). His sentence is AFFIRMED.

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