     Case: 10-10732 Document: 00511502256 Page: 1 Date Filed: 06/08/2011




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

                                                 FILED
                                                                            June 8, 2011
                                     No. 10-10732
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EMMANUEL CHUCKWUDI EKWURUKE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:08-CR-201-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Emmanuel Chuckwudi Ekwuruke appeals the 42-month sentence he
received after he was convicted of embezzling, abstracting, purloining, or
misapplying $485,059.76 from Bank of America, in violation of 18 U.S.C. § 656,
and embezzling, stealing, purloining, or converting to his use tax payer
remittance checks in excess of $1,000, in violation of § 641. He argues that his
within-Guidelines sentence was substantively unreasonable because there was
no actual loss, his offense was unsophisticated, he has no criminal history, and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10732 Document: 00511502256 Page: 2 Date Filed: 06/08/2011

                                  No. 10-10732

he made a serious effort to pursue his education when criminal charges were
pending.
      This court reviews a sentence for procedural error and for substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A sentence within the
guidelines range is presumed reasonable. United States v. Mondragon-Santiago,
564 F.3d 357, 360 (5th Cir. 2009); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Ekwuruke has not rebutted this presumption because he has not
shown that the district court failed to account for a sentencing factor that should
have been accorded substantial weight, gave substantial weight “to an irrelevant
or improper factor,” or made “a clear error of judgment in balancing sentencing
factors.” See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert.
denied, 130 S. Ct. 1930 (2010). The Guidelines permit the district court to
punish a defendant for intended loss.         See U.S.S.G. § 2B1.1, comment.
(n.3(A)(ii)). Further, Ekwuruke’s history and characteristics did not require a
sentence lower than the sentence the guidelines provide.           See 18 U.S.C.
§ 3553(a); Rita v. United States, 551 U.S. 338, 360 (2007). Accordingly, his
sentence is AFFIRMED.




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