     Case: 10-50204 Document: 00511316179 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 10-50204
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ENRIQUE MORENO-CRUZ, also known as Enrique Castillo-Moreno,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 4:09-CR-239-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Enrique Moreno-Cruz (Moreno) appeals the 46-month sentence he received
following his guilty plea conviction for illegal reentry into the United States
following deportation. He asserts that his sentence, despite being within the
applicable guidelines range, was substantively unreasonable because the district
court improperly based the sentence on Moreno’s personal factors rather than
on the severity of the offense. Additionally, Moreno hypothesizes that such a
lengthy sentence could give rise to a due process violation.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50204 Document: 00511316179 Page: 2 Date Filed: 12/08/2010

                                  No. 10-50204

      Because Moreno did not object to the imposed sentence as unreasonable,
we review this claim for plain error. United States v. Peltier, 505 F.3d 389, 391-
92 (5th Cir. 2007). Moreno’s disagreement with the within-guidelines sentence
imposed does not suffice to rebut the presumption of reasonableness. See Gall
v. United States, 552 U.S. 38, 51 (2007); United States v. Campos-Maldonado,
531 F.3d 337, 338 (5th Cir. 2008); United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir. 2008). Under United States v. Booker, 543 U.S. 220 (2005), the
district court is required to consider the factors of 18 U.S.C. § 3553(a), including
“the history and characteristics of the defendant.” § 3553(a)(1). Consequently,
the judgment of the district court is AFFIRMED.




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