     Case: 11-20055     Document: 00511672005         Page: 1     Date Filed: 11/21/2011




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

                                                                            FILED
                                                                        November 21, 2011
                                     No. 11-20055
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHRISTIAN JAVIER GUZMAN FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-579-4


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Christian Javier Guzman Flores pleaded guilty without the benefit of a
plea agreement to one count of conspiracy to possess with intent to distribute
cocaine. He appeals his 37-month, within-guidelines sentence as unreasonable
and unconstitutional.
        Flores contends that the district court committed procedural error by
holding him responsible for too high a quantity of drugs and for treating the
Guidelines as mandatory. He raised neither argument in the district court 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                         No. 11-20055

cannot now show plain error.1 The drug quantity finding was based on Flores’s
own admission as reflected in the presentence report, which Flores did not
attempt to rebut and has not shown lacked an adequate evidentiary basis or was
unreliable.2 Moreover, Flores provides no explanation or record citation to
support his assertion that the court treated the Guidelines as mandatory, and
nothing in the record suggests that the court believed it was bound by the
guidelines range.
       Flores argues that his sentence is substantively unreasonable for four
reasons: his young age entitled him to a shorter sentence, a codefendant who
was caught selling a similar amount of drugs received a shorter sentence, the
court should not have considered that Flores illegally possessed a gun, and the
court failed to take into account all of the goals of sentencing. At sentencing, the
district court listened to the parties’ arguments and provided sound reasons for
the within-guidelines sentence it selected. The court made “an individualized
assessment” based on the facts of Flores’s particular case.3 Flores’s arguments
amount to a disagreement with the court’s weighing of the sentencing factors,
which is insufficient to rebut the presumption that his within-guidelines
sentence is reasonable.4
       Finally, Flores maintains that his right to equal protection was violated
because he was sentenced more harshly than his codefendant. He did not raise
this issue in the district court; thus, plain error review applies.5 Flores has come


       1
           See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
       2
           See United States v. Smith, 528 F.3d 423, 425 (5th Cir. 2008).
       3
           United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
       4
         See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); see also
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005) (explaining that where a court
imposes a within-guidelines sentence, this Court will “infer that the judge has considered all
the factors for a fair sentence”).
       5
           See United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007).

                                                2
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                                       No. 11-20055

forward with no evidence as to the factors that went into determining his
codefendant’s sentence and has not explained the court’s reasons for imposing
that sentence. Nor has he established that any disparity between the two
sentences rises to the level of a constitutional violation by showing that his
codefendant was “similarly situated” to him and “unfairly enjoy[ed] benefits that
he does not or escape[d] burdens to which he is subjected.”6
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




      6
          United States v. Cronn, 717 F.2d 164, 169 (5th Cir.1983).

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