     Case: 13-50857       Document: 00512708986         Page: 1     Date Filed: 07/23/2014




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

                                                                                   FILED
                                                                                July 23, 2014
                                     No. 13-50857
                                   Summary Calendar                             Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

PEDRO ARIAS GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-2108-4


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pedro Arias Garcia pleaded guilty to one count of conspiracy to possess,
with intent to distribute, five kilograms or more of cocaine, in violation of 21
U.S.C. §§ 846 and 841, and one count of possession, with intent to distribute,
of five kilograms or more of cocaine, in violation of 21 U.S.C. § 841. He received
a within-Guidelines sentence of 51 months’ imprisonment. Arias challenges
both the procedural and substantive reasonableness of his sentence.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-50857     Document: 00512708986      Page: 2    Date Filed: 07/23/2014


                                  No. 13-50857

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). 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). Because Arias did not
object in district court to the procedural or substantive reasonableness of the
sentence, review is only for plain error. See United States v. Peltier, 505 F.3d
389, 391–92 (5th Cir. 2007).
      Under that standard, Arias must show a forfeited plain (clear or obvious)
error that affected his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he does so, we have the discretion to correct the error,
but should do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. See id. For the reasons that follow, Arias fails
to show clear or obvious error by the district court in explaining or selecting
his sentence.
      First, Arias contends the court erred procedurally by failing to give
adequate reasons for the sentence imposed. The record, however, reflects the
court considered the available evidence and contentions of the parties,
provided sufficient reasons for the sentence, and referenced the sentencing
factors provided in 18 U.S.C. § 3553(a). See Rita v. United States, 551 U.S.
338, 358–59 (2007). Moreover, Arias has not shown additional explanation
would have resulted in a lower sentence. See United States v. Mondragon-
Santiago, 564 F.3d 357, 364–65 (5th Cir. 2009).




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                                     No. 13-50857

      For this other sentencing claim, Arias contends his within-Guidelines
sentence was substantively unreasonable because the court failed to consider
mitigating    factors   including,     inter   alia,    family   circumstances      and
responsibilities. “[A] sentence within a properly calculated Guideline range is
presumptively reasonable”. United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006).   “The presumption 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).
      The district court considered the presentence investigation report, Arias’
motion for a downward variance, and the parties’ contentions at sentencing.
Although Arias pointed to mitigating evidence and circumstances that could
have justified a lesser sentence, the court concluded a lesser sentence was not
warranted. Specifically, it expressed concerns over the amount of cocaine
involved, Arias’ role in receiving the cocaine and paying the delivery driver,
and his knowledge that the cocaine was being transported to Chicago.
Therefore, Arias has failed to rebut the presumption of reasonableness
attached to his within-Guidelines-range sentence. See Cooks, 589 F.3d at 186.
      AFFIRMED.




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