     Case: 10-41145     Document: 00511565702         Page: 1     Date Filed: 08/09/2011




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

                                                                            FILED
                                                                           August 9, 2011
                                     No. 10-41145
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HUMBERTO GARCIA, also known as Humberto Garcia-Toscano,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:03-CR-674-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Humberto Garcia was convicted by a jury of
conspiracy to possess with intent to distribute marijuana (count 1), possession
with intent to distribute marijuana (counts 3 & 4), money laundering (count 5),
and engaging in a monetary transaction with respect to property derived from
illegal activities (counts 6, 7, and 8). Thereafter, we vacated Garcia’s sentence
and remanded for resentencing in light of the holding in United States v. Booker,
543 U.S. 220, 244 (2005). United States v. Garcia-Toscano, No. 09-40420 (5th

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41145    Document: 00511565702      Page: 2    Date Filed: 08/09/2011

                                  No. 10-41145

Cir. July 27, 2010) (unpublished).      On remand, the district court granted
Garcia’s objections to several sentencing enhancements. It sentenced Garcia at
the bottom of the recalculated guidelines imprisonment range to concurrent 262-
month terms of imprisonment as to counts 1, 3 and 4, to concurrent 240-month
terms of imprisonment as to counts 5, 6, and 7, and to a concurrent 120-month
term of imprisonment as to count 8. Garcia was ordered to serve concurrent five-
year periods of supervised release, and, unlike the original sentence, no fine was
imposed. The net effect of the district court’s rulings was to reduce Garcia’s total
term of imprisonment by 98 months. Garcia gave timely notice of his appeal.
      Garcia contends that the sentence imposed was substantively
unreasonable because it resulted in an unwarranted sentencing disparity
between his sentence and the sentence imposed on one of his codefendants, and
because the sentence failed to account adequately for his lack of a criminal
history and other characteristics and the nature and circumstances of the
offense. Properly calculated within-guidelines sentences are presumed to be
reasonable. United States v. Diaz, 637 F.3d 592, 603 (5th Cir. 2011). Garcia has
failed to rebut this presumption. See id. The judgment is
      AFFIRMED.




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