     Case: 17-10214      Document: 00514275038         Page: 1    Date Filed: 12/15/2017




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

                                    No. 17-10214
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                          December 15, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

RAYMUNDO MARTINEZ-VACA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-203-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Raymundo Martinez-Vaca appeals the sentence imposed on his guilty
plea conviction of being illegally present in the United States following
removal. He contends that his 27-month sentence of imprisonment, which was
within the advisory guidelines range, is substantively unreasonable because
the district court refused to adjust his sentence to account for the 27 days he
spent in immigration custody. Martinez-Vaca argues that an unwarranted


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10214

sentencing disparity results, contrary to 18 U.S.C. § 3553(a)(6), because
defendants in illegal reentry cases, unlike other criminal defendants, are not
granted credit for all of the time they spend in official detention.
      Generally, we review sentences for reasonableness, under an abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 51 (2007). The
Government contends that plain error review applies because Martinez-Vaca
did not object to the district court’s denial of his request for a downward
variance and because he did not object to his sentence after it was announced.
We need not decide whether Martinez-Vaca preserved the issue for appellate
review because he is not entitled to relief on his substantive-reasonableness
challenge no matter the standard of review. See United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir. 2008).
      Where, as here, the district court imposes a sentence within a properly
calculated guidelines range, the sentence is presumptively reasonable. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). This 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.” Id.
      A defendant is given credit toward his federal sentence for time spent in
official detention before being received into federal custody that has not been
credited against another sentence. See 18 U.S.C. § 3585(b). However, a district
court is not authorized to decide the amount of credit that a defendant receives.
United States v. Wilson, 503 U.S. 329, 335 (1992); Leal v. Tombone, 341 F.3d
427, 428 (5th Cir. 2003). Rather, the Attorney General, through the Bureau of
Prisons, determines what credit, if any, is awarded to prisoners for time spent




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                                  No. 17-10214

in custody prior to the commencement of their federal sentences. Leal, 341
F.3d at 428.
      In determining the particular sentence to be imposed, district courts are
required to consider several factors, including “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been
found guilty of similar conduct.”           § 3553(a)(6).    However, “avoiding
unwarranted general sentencing disparities is not a factor that [is granted]
significant weight where the sentence is within the Guidelines range.” United
States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011). The record reflects that the
district court considered Martinez-Vaca’s arguments for sentencing leniency,
including, inter alia, his request for a reduced sentence in light of the time that
he was in immigration custody, and determined that a within-guidelines
sentence was merited in light of specific factors listed in § 3553(a). Martinez-
Vaca’s mere disagreement with the weight that the district court gave the
sentencing factors does not justify reversal, and he has shown no other reason
for this court to disturb the presumption of reasonableness that applies to his
sentence. See Gall, 552 U.S. at 51.
      AFFIRMED.




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