     Case: 12-50232       Document: 00512089914         Page: 1     Date Filed: 12/19/2012




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

                                                                            FILED
                                                                        December 19, 2012
                                     No. 12-50232
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GILBERTO LUJAN MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-195-5


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Gilberto Lujan Martinez appeals from the judgment revoking his term of
probation, which was imposed for his conviction of aiding and abetting the
distribution of hydrocodone, and sentencing him to 12 months of imprisonment
and 24 months of supervised release. He contends solely that his 12-month term
of imprisonment was substantively unreasonable.
       Because Martinez did not object in the district court, his sentence should
be reviewed under the plain error standard. See United States v. Whitelaw, 580

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50232     Document: 00512089914     Page: 2   Date Filed: 12/19/2012

                                  No. 12-50232

F.3d 256, 259 (5th Cir. 2009). Martinez’s 12-month sentence was within the
guidelines policy statement sentencing range for his probation violation. See
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).
Martinez can rebut the presumption “only upon a showing that the sentence
does not account for a factor that should receive significant weight, [ ] gives
significant weight to an irrelevant or improper factor, or [ ] represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      Martinez has failed to rebut the presumption of reasonableness. He
violated the terms of his probation by distributing hydrocodone. Revocation of
probation was required. See 18 U.S.C. § 3565(b)(1). Moreover, distribution of
hydrocodone was the offense that resulted in Martinez being sentenced to
probation in the first place, and Martinez received the lowest sentence in the
policy statement’s sentencing range. See U.S.S.G. § 7B1.4(a), p.s. Martinez
seeks for this court to reweigh the sentencing factors and substitute its judgment
for that of the district court. This would be improper. See Gall v. United States,
552 U.S. 38, 51 (2007).
      AFFIRMED.




                                        2
