     Case: 16-50554       Document: 00513818964         Page: 1     Date Filed: 01/03/2017




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

                                     No. 16-50554                               FILED
                                   Summary Calendar                       January 3, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee

v.

GUILLERMO GOMEZ GONZALEZ, also known as Albert Asael Arguet-Cruz,

                                                  Defendant – Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:15-CR-1813-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Mexican national Guillermo Gomez Gonzalez appeals the within-
Guidelines 46-month sentence imposed following his guilty plea for importing
and possessing heroin with the intent to distribute, in violation of 21 U.S.C.
§§ 952 and 841. At sentencing, he objected to the sentence as unreasonable
given his history and characteristics.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-50554

      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Gonzalez’ pre-sentence investigation report (PSR) stated he was arrested
at the Paso Del Norte port of entry after 4.64 gross kilograms of heroin were
discovered in a secret compartment in the vehicle he was driving. He admitted
he was to be paid $1,500 for transporting the drugs across the border, but
denied knowledge of the type and quantity of drugs in the vehicle.
      The base offense level was originally determined to be 32, pursuant to
Guideline § 2D1.1, though the court reduced the base offense level to 30 after
finding the actual weight of the heroin was less than listed in the PSR. After
reductions for a minor role in the offense, acceptance of responsibility, and
safety-valve consideration, Gonzalez’ total offense level was determined to be
23. With a criminal history category of I, his advisory Guidelines sentencing
range was 46-57 months’ imprisonment.
      As noted, at sentencing Gonzalez requested a below-Guidelines sentence,
citing several mitigating factors, including his personal characteristics, family
history, and reason for committing the offense, each of which was set forth in
the PSR. The Government opposed the request because Gonzalez imported a
significant quantity of a dangerous drug. The court implicitly agreed with the



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                                  No. 16-50554

Government and denied Gonzalez’ request, sentencing him to 46 months, the
low end of the Guidelines range. And, the court overruled Gonzalez’ objection
to the sentence as unreasonable given his history and characteristics.
      Gonzalez asserts his sentence is substantively unreasonable because it
is greater than necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
He contends the court erred by giving too much weight to the drug type and
quantity involved in the offense and not enough weight to his personal history
and characteristics, particularly because Guideline § 2D1.1 is not empirically
based.
      Gonzalez’ contentions are without merit. The court was not required to
question the empirical grounding behind § 2D1.1. See United States v. Duarte,
569 F.3d 528, 530–31 (5th Cir. 2009). Gonzalez has not demonstrated that the
court failed to give the proper weight to any particular § 3553(a) factor, or that
his sentence “represents a clear error of judgment in balancing sentencing
factors”. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Instead,
he seeks to have this court reweigh the relevant sentencing considerations,
which our court will not do. See Gall, 552 U.S. at 51. In short, Gonzalez fails
to rebut the presumption of reasonableness accorded to his within-Guidelines
sentence. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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