     Case: 17-50470      Document: 00514373281         Page: 1    Date Filed: 03/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 17-50470
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         March 5, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

GUSTAVO ZAPATA-OCHOA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:15-CR-1346-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Gustavo Zapata-Ochoa appeals the within-
guidelines sentence imposed following his jury conviction for possession and
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine.         He    argues     that   his   sentence     was      substantively
unreasonable because it was greater than necessary to effectuate the
sentencing goals of 18 U.S.C. § 3553(a). He asserts that the sentence was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50470    Document: 00514373281       Page: 2   Date Filed: 03/05/2018


                                 No. 17-50470

greater than necessary (1) to reflect the seriousness of his involvement in the
offense because his codefendant was the leader and primary offender and (2)
to provide adequate deterrence because the subject offense was his first drug-
trafficking offense. He also contends that the district court failed to give
adequate weight to the fact that he was motivated to commit the instant
offense—illegally smuggling drugs into the U.S. from Mexico—out of a desire
to see his family members who currently reside in the U.S.
      Zapata-Ochoa objected to the substantive reasonableness of his sentence
in the district court, so our review is for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). “A discretionary sentence imposed within a
properly calculated guidelines range is presumptively reasonable.” United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008).                The
presumption of reasonableness “is rebutted only upon a showing that the
sentence does not account for a factor that should receive significant weight, it
gives significant weight to an irrelevant or improper factor, or it represents a
clear error of judgment in balancing sentencing factors.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009). A defendant’s “mere belief that the
mitigating factors presented for the court’s consideration should have been
balanced differently is insufficient to disturb this presumption.” United States
v. Alvarado, 691 F.3d 592, 597 (5th Cir. 2012).
      The district court had before it both mitigating and aggravating factors.
After balancing these factors, it determined that a sentence near the middle of
the guidelines range was appropriate.       We see no reason to disturb the
presumption of reasonableness in this case.        See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Considering the totality of the
circumstances, as we must, we conclude that Zapata-Ochoa has not shown that




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                                No. 17-50470

the district court’s sentence was an abuse of discretion. See Gall, 552 U.S. at
51.
       AFFIRMED.




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