     Case: 12-10759       Document: 00512192556         Page: 1     Date Filed: 04/01/2013




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

                                                                            FILED
                                                                            April 1, 2013
                                     No. 12-10759
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RUBEN LERMA-MARTINEZ, also known as Ruben Martinez, Jr.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-66-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Without a plea agreement, Ruben Lerma-Martinez pleaded guilty to one
count of conspiracy to distribute and possess with intent to distribute 500 grams
or more of a mixture and substance containing a detectable amount of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 846. The district court
sentenced Lerma to, inter alia, 170 months’ imprisonment, which fell in the
middle of the applicable advisory Guidelines sentencing range. As he did at
sentencing, he contends this sentence was substantively unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10759     Document: 00512192556       Page: 2   Date Filed: 04/01/2013

                                   No. 12-10759

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). 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); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). Lerma does not claim procedural error.
      Where, as here, the district court imposes a sentence within a properly
calculated advisory Guidelines sentencing range, the sentence is entitled to a
presumption of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   Lerma attempts to rebut the presumption of reasonableness,
asserting the district court failed to give sufficient weight to his “extraordinary
family circumstances”. He notes in this regard that while he was in custody for
the instant offense, his wife died, and further that while his parents are caring
for his three young children, his mother also cares for his father, who is disabled,
diabetic, and waiting for a liver transplant.
      Lerma essentially seeks to have his sentence vacated based on a
reweighing on appeal of the 18 U.S.C. § 3553(a) sentencing factors. “[T]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant”. United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Lerma’s disagreeing
with the propriety of his within-Guidelines 170-month sentence does not suffice
to rebut the presumption of reasonableness that attaches to it. See United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). This is especially true
in this instance because the district court stated it had considered the 18 U.S.C.
§ 1335(a) factors, see Alonzo, 435 F.3d at 554, and gave Lerma “the benefit of the



                                         2
    Case: 12-10759   Document: 00512192556   Page: 3   Date Filed: 04/01/2013

                              No. 12-10759

doubt” in not imposing a sentence at the top of his advisory Guidelines
sentencing range.
     AFFIRMED.




                                    3
