     Case: 11-50835       Document: 00512162711         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 11-50835
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCUS DUPREE GRACE, also known as Marcus D. Grace,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-10-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Marcus Dupree Grace pleaded guilty to the following charges: possession
with intent to distribute at least 28 grams of crack cocaine within 1000 feet of
a playground; possession of a firearm during the commission of a drug
trafficking crime; possession of a firearm having an obliterated serial number;
and possession of a firearm by a convicted felon. He was sentenced to a total of
252 months of imprisonment, which is a within-guidelines sentence.                        He
contends that the district court committed a significant procedural error by

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50835

imposing a sentence within the pertinent guidelines range without giving
specific reasons for rejecting his nonfrivolous arguments in favor of a sentence
below this range. He also asserts that the district court failed to consider the 18
U.S.C. § 3553(a) factors when imposing his sentence.
      We review Grace’s argument for plain error because he raises it for the
first time on appeal. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.
2009). To show plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but will do so only if the error substantially affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      A review of the record does not support Grace’s argument that the district
court failed to consider his arguments for a lower sentence or the § 3553(a)
factors. The court indicated in its written statement of reasons that it was
imposing Grace’s sentence “due to the drug amount falling at the mid-point of
the Drug Quantity Table and his criminal history points falling at the mid-point
of Criminal History Category IV.” Thus, a review of “the full sentencing record
reveals the district court’s reasons for the chosen sentence and allows for
effective review by this court.” United States v. Bonilla, 524 F.3d 647, 657-58
(5th Cir. 2008). Regardless, even if the district court’s reasons were inadequate
and constituted plain error, Grace has not shown that a more extensive
explanation would have changed his within-guidelines sentence. See United
States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir 2009).
      Grace also contends that his sentence is substantively unreasonable
because the district court failed to consider the multiple factors he identified in
favor of a lower sentence. Because Grace did not object to the substantive
reasonableness of his sentence before the district court, this argument is also
reviewed for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007).   The record reflects that the district court considered Grace’s

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                                   No. 11-50835

arguments for a lower sentence, but elected to impose a within-guidelines
sentence. Such a sentence is presumptively reasonable and afforded great
deference. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); United
States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Grace essentially seeks
to have his sentence vacated based on a reweighing of the § 3553(a) factors by
this court. “[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). The fact
that this court “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Gall v. United
States, 552 U.S. 38, 51 (2007). Further, a defendant’s disagreement with the
propriety of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence. Cf. United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008) (finding various
arguments for a non-guidelines sentence presented no reason to disturb the
presumption of reasonableness). Grace has not shown that his sentence was
substantively unreasonable, see Gall, 552 U.S. at 51, nor has he rebutted the
presumption of reasonableness that attaches to his within-guidelines sentence,
see Gomez-Herrera, 523 F.3d at 565-66.
      AFFIRMED.




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