     Case: 11-50491     Document: 00511786986         Page: 1     Date Filed: 03/13/2012




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

                                                                            FILED
                                                                          March 13, 2012
                                     No. 11-50491
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAVIER DE JESUS URIBE-ALMARAZ, also known as Francisco Xavier-Javier,
also known as Javier de Jesus Almaraz, also known as Javier Almaraz,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-191-1



Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Javier de Jesus Uribe-Almaraz (Uribe) pleaded guilty to one count of
illegal reentry following deportation and received a within-guidelines sentence
of 48 months in prison. On appeal, he challenges the substantive reasonableness
of his sentence, arguing that the district court failed to conduct an individualized
assessment and failed to accord adequate weight to his personal circumstances.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50491       Document: 00511786986          Page: 2     Date Filed: 03/13/2012

                                       No. 11-50491

The Government moves for summary affirmance or, alternatively, for an
extension of time to file an appellate brief. Uribe opposes summary affirmance.
       We reject the Government’s request for summary affirmance because we
conclude that Uribe’s substantive reasonableness challenge implicates a fact-
specific analysis of his sentence. Gall v. United States, 552 U.S. 38, 51 (2007);
Rita v. United States, 551 U.S. 338, 354 (2007). As such, while some of his
arguments are foreclosed by circuit precedent, his “totality of the circumstances”
argument is not so frivolous or clearly foreclosed as to warrant summary
affirmance.     See Gall, 552 U.S. at 51(appellate review of the substantive
reasonableness of a sentence “will . . . take into account the totality of the
circumstances”); see generally United States v. Davis, 598 F.3d 10, 16 (2d Cir.
2010)(“Strong deference to a district court’s decision is not an invitation to rush
to characterize an appeal from it as frivolous.”)1
       Because Uribe objected to the denial of his motion for a downward
variance, which was based on an assertion that the guidelines sentence was
greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors, he has
preserved his challenge to the substantive reasonableness of his sentence. Cf.
United States v. Peltier 505 F.3d 389, 391-92 (5th Cir. 2007) (holding that a
defendant’s failure to object at sentencing to the reasonableness of his sentence
triggers plain error review). The substantive reasonableness of a sentence is
reviewed under an abuse-of-discretion standard. Gall, 552 U.S. at 51. Because
Uribe’s sentence is within the advisory guidelines range, it is presumptively
reasonable. See id. (allowing courts of appeals to apply a presumption of
reasonableness to a within-guidelines sentence); United States v. Newson, 515




       1
           Nonetheless, because Uribe has filed a brief on the merits and fully responded to the
arguments the Government made in its Motion for Summary Affirmance, we deem further
briefing by the Government unnecessary and, therefore, deny its motion for extension of time
to file a merits brief.

                                               2
   Case: 11-50491    Document: 00511786986       Page: 3   Date Filed: 03/13/2012

                                   No. 11-50491

F.3d 374, 379 (5th Cir. 2008)(“In this circuit, a within-guidelines sentence
enjoys, on review, a rebuttable presumption of reasonableness.”).
      Uribe argues that the seriousness of his offense is overstated because
U.S.S.G. § 2L1.2 lacks an empirical basis. He also argues that the age of his
prior conviction results in an overstated guidelines range. We have consistently
rejected these arguments. See United States v. Rodriguez, 660 F.3d 231, 233-34
(5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009).
Further, as he acknowledges, Uribe’s argument that he deserved a lesser
sentence based upon the disparity in fast track early disposition programs is
foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 562-63 & n.4 (5th
Cir. 2008).
      Uribe argues that his guidelines range failed to take into account his
personal history and circumstances. The sentencing transcript reveals that the
district court carefully made an individualized sentencing decision based on the
facts of the case in light of the factors set out in § 3553(a). See Gall, 552 U.S. at
49-50. The district court’s conclusion that a within-guidelines sentence is
appropriate is entitled to deference, and we presume that it is reasonable. See
id. at 51-52; Newson, 515 F.3d at 379. Uribe has not shown that the district
court committed a “clear error of judgment” in its weighing of the various
sentencing factors, and he has not established that the district court’s rejection
of his arguments failed to account for a significant factor or gave weight to an
irrelevant factor. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The
district court listened to Uribe’s arguments for a lesser sentence but found that
a sentence at the higher end of his guidelines range was appropriate. We see no
reason to disturb the district court’s discretionary decision to impose a sentence
within the guidelines range as Uribe has not shown sufficient reason for this
court to disturb the presumption of reasonableness applicable to his sentence.
See Cooks, 589 F.3d at 186.



                                         3
  Case: 11-50491   Document: 00511786986   Page: 4   Date Filed: 03/13/2012

                              No. 11-50491

     Accordingly, the judgment of the district court is AFFIRMED.        The
government’s motion for summary affirmance is DENIED. The Government’s
alternative motion for an extension of time to file a brief is DENIED as
unnecessary.




                                    4
