     Case: 18-50752       Document: 00515393357         Page: 1     Date Filed: 04/23/2020




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

                                                                                 FILED
                                     No. 18-50752                            April 23, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTONIO MURO, JR.,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:17-CR-359-2


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In United States v. Muro, our court upheld appellant’s sentence of 66-
months’ imprisonment. 765 F. App’x 57, 58 (5th Cir. 2019) (per curiam),
vacated, No. 18-9164, 2020 WL 981780 (U.S. 2 Mar. 2020). As relevant here,
we held, pursuant to United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-50752

2007), that review was only for plain error because, at his sentencing hearing,
appellant “did not object to his imposed sentence”. Muro, 765 F. App’x at 57.
(In his opening brief on appeal, Muro recognized our binding precedent, but
urged review should not be for plain error, raising this standard-of-review
issue to preserve it for possible further review.)
      On 26 February 2020, however, the Supreme Court, in Holguin-
Hernandez v. United States, held “defendant’s district-court argument for a
specific sentence . . . preserved his claim on appeal that [his] . . . sentence was
unreasonably long”. 140 S. Ct. 762, 764 (2020). Moreover, the Court noted
“that reasonableness is the label we have given to the familiar abuse-of-
discretion standard that applies to appellate review of the trial court’s
sentencing decision” and reiterated that
      [a] defendant who, by advocating for a particular sentence,
      communicates to the trial judge his view that a longer sentence is
      greater than necessary has thereby informed the court of the legal
      error at issue in an appellate challenge to the substantive
      reasonableness of the sentence. He need not also refer to the
      standard of review.

Id. at 766–67 (emphasis in original) (internal quotation marks and citations
omitted).
      As a result, the Court, for the case at hand, granted certiorari, vacated
our judgment, and remanded to our court “for further consideration in light of
Holguin-Hernandez”, with the Court’s judgment’s being entered on 2 March
2020. Muro v. United States, No. 18-9164, 2020 WL 981780, at *1 (U.S. 2 Mar.
2020). Accordingly, this opinion is substituted for our prior opinion in this
appeal.
      Antonio    Muro, Jr., challenges the           66-month   within-Sentencing
Guidelines sentence imposed after he pleaded guilty to aiding and abetting
possession, with intent to distribute, 100 kilograms or more, but less than 1000


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                                  No. 18-50752

kilograms, of marihuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. He asserts: his sentence is substantively unreasonable; and, in that
regard, the district court should instead have imposed the statutory minimum
sentence of 60 months, which was also within the advisory Guidelines
sentencing range.      Along that line, Muro contends the court should have
considered the lower likelihood of recidivism in the light of his age, his difficult
childhood, his steady work history, and the needs of his family. Although Muro
acknowledges his offense was serious, he claims the crime’s not involving
violence or a weapon meant there was no need for an additional six months to
protect the public. According to Muro, the time above the statutory minimum
was imposed solely for the purpose of punishment.
      Although post-Booker, the 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, 46, 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).
      At his sentencing hearing, Muro did not formally object to the
substantive reasonableness of his sentence after it was imposed. Prior to
sentence being imposed, but after the court announced Muro’s advisory
Guidelines sentencing range was         60–71-months’ imprisonment, however,
Muro stated during his allocution: “You know, I just wish to get the lowest
time possible so I can go home and go back to work”. We assume, for purposes



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                                  No. 18-50752

of this appeal, that Muro’s statement satisfied the Court’s requirements in
Holguin-Hernandez for preserving his substantive-reasonableness challenge.
      Even so, Muro’s within-Guidelines sentence is entitled to a presumption
of reasonableness. E.g., United States v. Hernandez, 876 F.3d 161, 166 (5th
Cir. 2017) (per curiam) (citation omitted). “[T]his presumption is rebutted only
if the appellant demonstrates that the sentence does not account for a factor
that should receive significant weight, gives significant weight to an irrelevant
or improper factor, or represents a clear error of judgment in balancing
sentencing factors” listed in 18 U.S.C. § 3553(a). Id. (citation omitted). Along
that line, our court’s “review is highly deferential, because the sentencing court
is in a better position to find facts and judge their import under the § 3553(a)
factors with respect to a particular defendant”. Id. (internal quotation marks
and citation omitted).
      Muro’s speculative belief the court relied solely on punishment to reach
his 66-month sentence, combined with his general assertion that his favorable
personal factors outweighed the seriousness of the offense, reflect his
disagreement with the court’s weighing of the 18 U.S.C. § 3553(a) factors and
“amount[] to a request that we reweigh the sentencing factors and substitute
our judgment for that of the district court, which we will not do”. See id. at 167
(citation omitted).   In short, Muro has not rebutted the presumption of
reasonableness afforded his within-Guidelines sentence. See id.
      AFFIRMED.




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