     Case: 14-10545      Document: 00512850743         Page: 1     Date Filed: 11/26/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10545
                                  Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          November 26, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                 Plaintiff-Appellee

v.

OSCAR ACOSTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-213-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Oscar    Acosta     appeals     from     his   conviction     of    possession               of
methamphetamine with intent to distribute, for which he was sentenced to 420
months of imprisonment. Acosta contends that his sentence was substantively
unreasonable because of his youth, his father’s bad example, and the recently
effective Amendment 782 to the Sentencing Guidelines, which lowered offense
levels for many drug offenders.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10545

      Because Acosta did not object to the reasonableness of his sentence in
the district court, his challenge on appeal is reviewed for plain error. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To succeed on
plain error review, an appellant must show (1) a forfeited error (2) that is clear
or obvious and (3) that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, this court may
exercise its discretion “to remedy the error . . . if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks, bracketing, and citation omitted).
      “[A] sentence within a properly calculated guideline sentencing range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   “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 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).
      The district court noted Acosta’s age, then determined that his criminal
history rendered him a danger to society as a potential recidivist and concluded
that a within-range sentence would address the 18 U.S.C. § 3553(a) sentencing
factors.   Protection of the public and specific deterrence are among the
§ 3553(a) factors. See § 3553(a)(2)(B), (C). Age and lack of guidance as a youth
are factors that may be considered under § 3553(a).              United States v.
Mondragon-Santiago, 564 F.3d 357, 363 & n.4 (5th Cir. 2009). However, an
adult defendant’s age, without more, does not render a within-range sentence
substantively unreasonable, at least not to the extent that such a sentence is
reversible under the plain error standard. See United States v. Powell, 732
F.3d 361, 382 (5th Cir. 2013), cert. denied, 134 S. Ct. 1326 (2014). Moreover,



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                                 No. 14-10545

the district court’s weighing of the § 3553(a) factors is entitled to deference,
and Acosta’s mere disagreement with the district court’s weighing of those
factors does not establish that the sentence was substantively unreasonable.
See Gall v. United States, 552 U.S. 38, 51 (2007).
      Finally, the district court correctly used the Guidelines in effect at the
time of Acosta’s sentencing on May 2, 2014. See United States v. Martin, 596
F.3d 284, 286 (5th Cir. 2010).       Amendment 782 becomes retroactively
applicable effective November 1, 2015. See U.S.S.G., App. C, Amend.788.
Acosta may seek a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2),
to become effective on November 15, 2015, but he cannot obtain relief on direct
appeal. See Martin, 596 F.3d at 286.
      AFFIRMED.




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