     Case: 09-20198     Document: 0051998426          Page: 1     Date Filed: 01/07/2010




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

                                                 FILED
                                                                           January 7, 2010
                                     No. 09-20198
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN PABLO GUTIERREZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-741-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges
PER CURIAM:*
       Juan Pablo Gutierrez appeals his 46-month sentence of imprisonment
following his guilty plea conviction for eight counts of making a false material
statement to a federal firearms licensee. Gutierrez argues that the district court
erred by failing to give sufficient reasons for its within-guidelines sentence, and
because its reasons were inadequate, the district court might have impermissibly
relied on Gutierrez’s failure to cooperate with the Government when
determining his sentence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20198

       Because Gutierrez failed to object in the district court to the sufficiency of
the reasons for his sentence, our review is limited to plain error.1 Our review of
the record indicates that the district judge referenced the appropriate guidelines
range and stated that he did not think that any factors were present that would
take Gutierrez’s case outside of the “heartland.” Moreover, the judge stated
during the hearing that Gutierrez had committed a “serious offense.” Finally,
the judge concluded that he had considered the guidelines and found that a
sentence within the guidelines is consistent with the purposes of § 3553(a).
Based on the foregoing, we find that the district court’s reasons for Gutierrez’s
within-guidelines sentence were sufficient.2
       Next, Gutierrez argues that the district court may have impermissibly
relied on his failure to cooperate when determining his sentence. It is arguable
that he failed to object in the district court on this basis: he contended in the
district court that his failure to cooperate was not an appropriate factor on which
to base an upward departure, but did not assert that it was not an appropriate
factor on which to rely in sentencing him within the guidelines. We need not
determine whether this means that plain-error or abuse-of-discretion review
applies here because Gutierrez is not entitled to relief even assuming that he
preserved the issue for review.3
       For one, the record is devoid of any evidence that the district court relied
on Gutierrez’s failure to cooperate when determining Gutierrez’s sentence.4


       1
        See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008), cert. denied,
129 S. Ct. 1423, 1429 (2009).
       2
           See Rita v. United States, 551 U.S. 338 (2007).
       3
        See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct.
624 (2008).
       4
          See United States v. Ronquillo, 508 F.3d 744, 749 (5th Cir. 2007) (stating that the
district court, that merely noted its doubt concerning whether the defendant was repentant
based on his failure to cooperate with authorities, did not draw an adverse inference based on
his failure to cooperate).

                                                2
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                                      No. 09-20198

Moreover, even if the district court relied on Gutierrez’s failure to cooperate, it
did not err because the district court sentenced Gutierrez to a within-guidelines
sentence.5
       To the extent that Gutierrez’s challenge is to the substantive
unreasonableness of his sentence, his 46-month, within-guidelines sentence was
presumptively reasonable,6 the district court’s reasons for Gutierrez’s sentence
were sufficient, and thus, the totality of the circumstances, considered in light
of the § 3553(a) factors, does not show that the sentence imposed by the district
court was unreasonable under plain error or abuse-of-discretion review.
       Accordingly, the judgment of the district court is AFFIRMED.




       5
         See United States v. Alvarez, 51 F.3d 36, 41 (5th Cir. 1995) (“[A] district court may,
in determining a specific sentence within the applicable Guidelines range, consider a factor
that may itself not support an upward or downward departure.”); cf. Roberts v. United States,
445 U.S. 552, 557–58 (1980) (holding that, in determining a sentence, the district court may
consider a defendant’s failure to cooperate with an ongoing investigation of the criminal
scheme of which the defendant was a part); United States v. Ortega, 188 F. App’x 266, 266 (5th
Cir. 2006) (holding that it was not error for the district court to consider the defendant’s lack
of cooperation when sentencing him to imprisonment rather than probation); United States
v. Dickson, 712 F.2d 952, 955 (5th Cir. 1983) (holding that the district court may consider a
defendant’s lack of cooperation in determining the sentence).
       6
           United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

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