     Case: 10-10850     Document: 00511516614          Page: 1    Date Filed: 06/22/2011




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

                                                 FILED
                                                                            June 22, 2011
                                     No. 10-10850
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JOSE JESUS HORTA-FIGUEROA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:10-CR-50-6


Before KING, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
        Jose Jesus Horta-Figueroa appeals his 262-month sentence, imposed
following his guilty-plea conviction for conspiracy to possess, with intent to
distribute, 50 grams or more of a mixture containing methamphetamine, a
controlled substance.         Horta contends:         his sentence was substantively
unreasonable in the light of mitigating circumstances, including his youth and
lack of criminal history; the district court did not provide specific reasons for the
sentence; and, because the court made only general reference to the 18 U.S.C.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10850      Document: 00511516614    Page: 2    Date Filed: 06/22/2011

                                  No. 10-10850

§ 3553(a) sentencing factors, it cannot be determined whether it considered the
mitigating factors. He also asserts he has provided a basis for rebutting the
presumption of reasonableness attached to a within-Guidelines sentence.
      Horta is not challenging the procedural reasonableness of his sentence.
Along that line, at sentencing, the district court, after hearing testimony about
whether Horta was in actual or constructive possession of the firearm seized
where the methamphetamine was manufactured and distributed, ruled Horta
did not have sufficient knowledge of the presence of the firearm and applied the
requested safety-valve provision, reducing the advisory sentencing range from
324-405 months to 262-327 months.
      If, as here, a sentencing decision is procedurally sound, the substantive
reasonableness of the imposed sentence is reviewed for abuse of discretion. Gall
v. United States, 552 U.S. 38, 51 (2007). As noted above, a within-Guidelines
sentence “is presumptively reasonable”. United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006).
      The record shows the district court, inter alia: considered the serious
nature and ramifications of the drug conspiracy and the need to deter such
conduct; listened to Government’s evidence, defense counsel’s mitigating
arguments, and Horta’s allocution; specifically referred to its consideration of the
§ 3553(a) factors; and implicitly considered Horta’s mitigating arguments by
sentencing him at the bottom of the Guidelines range. Horta’s disagreement
with the district court’s consideration of the § 3553(a) factors and the mitigating
circumstances is insufficient to disturb the presumption of reasonableness
afforded his within-Guidelines sentence. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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