     Case: 12-20179       Document: 00512208105         Page: 1     Date Filed: 04/15/2013




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

                                                                            FILED
                                                                           April 15, 2013
                                     No. 12-20179
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PROSPERO HERNANDEZ MARTINEZ, also known as Propeso Martinez
Hernandez, also known as Prospero Martinez Hernandez,


                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-698-1


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Prospero Hernandez Martinez appeals the 57-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that his
sentence is substantively unreasonable because it fails to take into account his
cultural assimilation and is greater than necessary to deter future criminal


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20179     Document: 00512208105     Page: 2   Date Filed: 04/15/2013

                                  No. 12-20179

conduct and to protect the public. He does not challenge his sentence for
procedural error.    The Government argues that he waived his arguments
because he said he had no objections to the sentence imposed, and, alternatively,
that he fails to demonstrate any plain error with respect to his sentence. We
need not address whether the arguments were waived or, even if they were not,
whether plain error review applies because Hernandez Martinez’s arguments
fail even under the abuse-of-discretion standard. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008);
United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006).
      The argument that a lesser sentence was justified based on Hernandez-
Martinez’s cultural assimilation and familial ties in the United States is
insufficient to rebut the presumption of reasonableness applicable to his
sentence. See United States v. Rodriguez, 660 F.3d 231, 232, 234-35 (5th Cir.
2011). “Although cultural assimilation can be a mitigating factor and form the
basis for a downward departure, nothing requires that a sentencing court must
accord it dispositive weight.” Id. Moreover, the district court listened to
Hernandez Martinez’s arguments in support of a lesser sentence but determined
that a 57-month sentence was appropriate. “[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). Hernandez Martinez has not shown sufficient
reason to disturb the presumption of reasonableness applicable to his sentence.
See Rodriguez, 660 F.3d at 234-35. His within-guidelines sentence was not an
abuse of discretion and is AFFIRMED.




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