     Case: 13-10531      Document: 00512567404         Page: 1    Date Filed: 03/20/2014




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


                                      No. 13-10531
                                                                               FILED
                                                                          March 20, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                 Plaintiff–Appellee,

v.

JOSUE MARTINEZ-GARCIA,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-168-1


Before JONES, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant         Josue     Martinez-Garcia        was      convicted             of
conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 and
sentenced to life imprisonment. He appeals his conviction on the grounds that
the district court violated his Sixth Amendment rights to confront witnesses
and to present a complete defense, the district court erred in admitting
evidence obtained as the fruit of an unreasonable search, and the evidence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-10531
insufficient to convict.   He appeals his sentence on the ground that it is
substantively unreasonable.     We conclude that each of Martinez-Garcia’s
arguments lacks merit, and we affirm his conviction and sentence.
                                      I
      Martinez-Garcia became the target of an investigation by a Drug
Enforcement Administration (DEA) task force after surveillance of a known
methamphetamine dealer named Jacob Fenton led police to a residence owned
by Martinez-Garcia, whom officers believed to be Fenton’s source. Fenton was
later arrested and began providing information to the police about Martinez-
Garcia. Around the same time, an undercover officer attempted to use a
confidential informant to purchase drugs from an unidentified individual later
determined to be Martinez-Garcia, but the transaction was not completed
because Martinez-Garcia suspected police involvement.         A later meeting
between the confidential informant and Martinez-Garcia observed by Officer
George Courtney of the DEA task force led to the realization that the person
identified as Fenton’s source was the same person as the target of the failed
undercover operation, and a decision was made to have Martinez-Garcia “truly
identified” by means of a traffic stop in order to determine his real name and
birth date.
      The stop was initiated by Officer Adam Byars, who was told where he
could likely find Martinez-Garcia and was asked to stop his vehicle. After
spotting Martinez-Garcia in his vehicle, Officer Byars followed him onto the
highway and, after briefly pacing the car, executed a traffic stop for driving
seventy miles per hour in a sixty mile per hour zone. Martinez-Garcia provided
a Mexican driver’s license containing no birth date and listing his name as
Miguel Martinez. Officer Byars arrested Martinez-Garcia for not having an
operator’s license and obtained fingerprints in order to verify his identity.
Martinez-Garcia admitted that he was actually Josue Martinez. An officer on
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                                  No. 13-10531
the DEA task force photographed Martinez-Garcia to verify his identity.
Martinez-Garcia was subsequently indicted for conspiracy to distribute and
possess with intent to distribute a controlled substance in violation of 21 U.S.C.
§ 846.
         Prior to trial, Martinez-Garcia moved to suppress the evidence of his
identity resulting from the traffic stop initiated by Officer Byars. The district
court denied the motion. A jury trial commenced, which ended in a mistrial
after the jury was unable to reach a unanimous verdict. Martinez-Garcia was
re-indicted and a second jury trial commenced. The prosecution presented
testimony of three alleged co-conspirators—Fenton, Alton Gary, and Leslie
Alonzo—and Officer Courtney. Fenton explained that he had been arrested
and charged with conspiracy to distribute methamphetamine and had pleaded
guilty. He identified Martinez-Garcia as his supplier and described various
details of the conspiracy, including: the consignment arrangement he had with
Martinez-Garcia; the means of communication between the two; the amounts
of methamphetamine supplied by Martinez-Garcia; and the locations where
Martinez-Garcia stored drugs and money and where Fenton purchased drugs
from      Martinez-Garcia.      Gary     testified    that     he   had   purchased
methamphetamine         from    Fenton       and      observed      Fenton     obtain
methamphetamine from an apartment complex associated with Martinez-
Garcia. Alonzo testified that she had sold methamphetamine for Martinez-
Garcia and another man, and she provided details regarding where drugs were
kept and where she received them from Martinez-Garcia, how the
arrangement worked, and other information about Martinez-Garcia’s real
property and vehicles that was corroborative of the testimony of other
witnesses. She also confirmed Fenton’s association with Martinez-Garcia.
Officer Courtney described various surveillance operations that led law
enforcement agents to property and vehicles associated with Martinez-Garcia
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                                  No. 13-10531
and that gave rise to the attempted drug transaction with Martinez-Garcia.
      During the cross-examination of Fenton, counsel for Martinez-Garcia
sought to inquire about Fenton’s criminal history, beginning with the first time
he was arrested. After ascertaining that defense counsel wished to go over
Fenton’s entire criminal history, the district court instructed Fenton to simply
state “every time [he could] recall getting arrested.” Fenton then testified to
arrests for theft, unauthorized use of a motor vehicle, possession of marijuana
and methamphetamine, and felon in possession of a weapon. After Fenton had
related his criminal history, the court prohibited defense counsel from asking
additional questions on the subject. Defense counsel then asked Fenton about
the nature and circumstances of the arrest that led to the charge of conspiracy
to distribute methamphetamine. Fenton explained that he had been arrested
following a police chase in which he drove the wrong way down a one-way
street in an attempt to evade capture because he was high and on the run from
a probation violation, and he did not want to go back to jail. Defense counsel
asked Fenton about the duration of the chase and Fenton responded that he
was “aware that it took 21 minutes,” based on a police report he had read.
When defense counsel attempted to continue questioning Fenton on the chase,
he was instructed by the district court to move on to another subject unless he
could provide the court with a justification for continuing that line of
questioning.
      Martinez-Garcia sought to call Officer Waqas Ameen, who had been
involved in the police chase preceding Fenton’s arrest, to testify to the severity
of the chase. The district court excluded the proffered testimony on the ground
that “[t]he waste of time more than offsets the beneficial value the jury could
get out of it.”
      Martinez-Garcia was convicted. He moved for a judgment of acquittal
and new trial under Federal Rule of Criminal Procedure 29, which was denied.
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At Martinez-Garcia’s sentencing hearing, the district court adopted the factual
findings of the Presentence Investigation Report (PSR), which calculated an
offense level of 43 and criminal history category of III, with a recommended
sentence of life imprisonment under the United States Sentencing Guidelines.
Concluding that there was no reason to depart from the Guidelines and that
life imprisonment was an appropriate sentence for Martinez-Garcia, the
district court sentenced Martinez-Garcia to life imprisonment.                   Martinez-
Garcia now appeals his conviction and sentence.
                                               II
      Martinez-Garcia first argues that the district court violated his Sixth
Amendment Confrontation Clause rights when the court prevented defense
counsel from asking follow-up questions about Fenton’s criminal history and
inquiring further into the severity of the police chase. This court reviews de
novo a defendant’s claim that his Sixth Amendment right to confront witnesses
against him has been violated. 1 A Confrontation Clause violation exists if “a
reasonable jury might have had a significantly different impression of the
witness’s credibility if defense counsel had been allowed to pursue the
questioning.” 2 If a violation is found, it is subject to harmless error analysis. 3
Otherwise, “[i]f there is no Confrontation Clause violation, we review the
district court’s limitation of cross-examination for abuse of discretion.” 4
      Martinez-Garcia asserts that, had the cross-examination regarding
Fenton’s criminal history not been limited, the jury could have concluded,
based on Fenton’s extensive criminal history, that he had a propensity for



      1   United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010).
      2   United States v. Roussel, 705 F.3d 184, 194 (5th Cir. 2013).
      3   Templeton, 624 F.3d at 223.
      4   Id.
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                                         No. 13-10531
untruthfulness and that he might have fabricated his testimony in order to
shift blame from himself to Martinez-Garcia. However, Fenton had already
testified to the nature and frequency of his arrests and convictions. Indeed,
Martinez-Garcia offers no suggestion as to any information defense counsel
could have uncovered that would have been different in substance from the
testimony Fenton had already provided on the subject. Instead, Martinez-
Garcia essentially argues that his attorney should have been permitted to
cross-examine Fenton about his criminal history in more detail. But more
details would not have caused the jury to have a “significantly different
impression” of Fenton’s credibility. We have previously held that a limitation
on such cumulative questioning does not violate a defendant’s Confrontation
Clause rights, 5 and we conclude that it did not do so in this case. Nor did the
district court abuse the discretion permitted it in imposing “reasonable limits
on . . . cross-examination based on concerns about . . . interrogation that is
repetitive or only marginally relevant.” 6
       As to the district court’s limitation on questioning about the police chase,
Martinez-Garcia argues that Fenton minimized the severity of the chase and
that, had defense counsel been permitted to engage in further cross-
examination, the inconsistency would have become clear. He contends that
this might have significantly influenced the jury’s view of Fenton’s credibility
because it could have concluded that since Fenton downplayed the severity of




       5 See, e.g., United States v. Reeves, 892 F.2d 1223, 1225 (5th Cir. 1990) (holding that
defendant’s Confrontation Clause rights were not violated when judge limited cross-
examination “when the questions became cumulative”); see also United States v. McCullough,
631 F.3d 783, 791 (5th Cir. 2011) (holding that defendant’s Confrontation Clause rights were
not violated when defense counsel was permitted to elicit “basic information about [the
witness’s] convictions”).
       6   United States v. Alaniz, 726 F.3d 586, 611 (5th Cir. 2013).
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                                    No. 13-10531
the police chase, he had also downplayed his role in the conspiracy in an
attempt to shift the blame onto Martinez-Garcia. This claim also fails.
      First, to the extent that Fenton minimized the severity of the police
chase, its impact was not substantial. Fenton admitted that he was involved
in a lengthy police chase involving the commission of multiple dangerous
felonies in order to avoid returning to jail for previous violations, and that he
had pleaded guilty to conspiracy to distribute methamphetamine. This is
already a basis from which Martinez-Garcia could argue that Fenton had
motive to fabricate his testimony, and the fact that the actual police chase may
have been more serious would not have substantially impacted the jury’s view
of Fenton’s credibility. Second, and more importantly, the testimony Fenton
provided was not inconsistent with Martinez-Garcia’s characterization of the
police chase. Thus, there would be no contradiction in Fenton’s testimony that
might alter the jury’s view of his credibility. Therefore, even if Martinez-
Garcia’s attorney had been permitted to continue questioning Fenton and elicit
testimony to Martinez-Garcia’s satisfaction, Martinez-Garcia has failed to
show that this might have caused the jury to have a substantially different
view of Fenton’s credibility.
      For the same reasons, Martinez-Garcia cannot show that the district
court abused its discretion in prohibiting defense counsel from continuing to
question Fenton about the police chase. Because Martinez-Garcia cannot show
that further questioning would have resulted in inconsistent testimony that
would have impeached Fenton’s credibility, the probative value of that
testimony is substantially outweighed by needlessly presenting cumulative
evidence. 7 Thus, the district court did not abuse its discretion in not permitting
defense counsel to continue his questioning on the topic.


      7   See FED. R. EVID. 403.
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                                           No. 13-10531
                                               III
      Martinez-Garcia next raises a separate Sixth Amendment claim: the
district court violated his right to present a complete defense by excluding the
testimony of Officer Ameen.                We review de novo claimed violations of a
defendant’s right to present a complete defense. 8 That right “may be violated
by ‘evidence rules that infringe upon a weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are designed to serve.’” 9 If
a violation is found, it is subject to harmless error analysis. 10 In the absence
of a violation, evidentiary rulings are reviewed for abuse of discretion. 11
      Martinez-Garcia asserts that the district court’s exclusion of Officer
Ameen’s testimony prevented defense counsel from eliciting for the jury details
of the severity of the police chase, and that had counsel been able to do so, the
jury could have concluded that Fenton’s testimony regarding the conspiracy
was fabricated in order to obtain favorable treatment from prosecutors in his
own case. This mirrors an argument that we previously rejected in United
States v. Ramos. 12 In Ramos, the defendants were two Border Patrol agents
charged with various offenses related to the shooting of a drug-trafficking
suspect. 13 The suspect testified on behalf of the prosecution that he was
unarmed and fleeing when he was shot. 14                     After being convicted, the
defendants argued on appeal that the district court had violated their right to



      8   United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008).
      9 United States v. Njoku, 737 F.3d 55, 75 (5th Cir. 2013) (quoting Holmes v. South
Carolina, 547 U.S. 319, 324 (2006)).
      10   Skelton, 514 F.3d at 438.
      11   Njoku, 737 F.3d at 75.
      12   537 F.3d 439 (5th Cir. 2008).
      13   Ramos, 537 F.3d at 442.
      14   Id. at 445.
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                                     No. 13-10531
present a complete defense by excluding testimonial and photographic
evidence regarding the amount and value of marijuana in the vehicle driven
by the suspect, which they contended was relevant to the issue of whether the
suspect had a gun, thereby justifying the defendants’ use of their weapons. 15
      In rejecting the defendants’ argument, we noted that the suspect had
already admitted that he knew he was transporting drugs and committing a
serious offense, and concluded that “the specific weight and value of the
marijuana load would have added little more to the case of the defense and
reasonably could be seen as cumulative.” 16 Further, the court reasoned that
the defendants had still made arguments to the jury based on the large amount
of marijuana and the suspect’s possible motives; thus, the exclusion of the
additional evidence was “neither a Sixth Amendment violation [of the
defendants’ right to present a complete defense] nor an abuse of discretion
relating to an evidentiary matter.” 17
      Similarly, here Fenton had already admitted that he was involved in a
police chase lasting twenty-one minutes, and that he had pleaded guilty to
conspiracy to distribute methamphetamine. Thus, the admission of additional
testimony regarding the specifics of the police chase in which Fenton was
involved “would have added little more to the case of the defense and
reasonably could be seen as cumulative.” 18 Additionally, defense counsel was
able to, and did, use Fenton’s admissions to argue to the jury in closing that
Fenton had motive to fabricate testimony. Thus, as in Ramos, the exclusion of
Officer Ameen’s testimony was neither a Sixth Amendment violation nor an



      15   Id. at 447-49.
      16   Id. at 449.
      17   Id.
      18   Cf. id.
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                                            No. 13-10531
abuse of discretion.
                                                IV
       Martinez-Garcia challenges the district court’s denial of his motion to
suppress the evidence of his identity obtained as the result of the traffic stop
performed by Officer Byars. He argues that the traffic stop of his vehicle by
Officer Byars was illegal because it was a pretext performed “only to obtain
evidence from [Martinez-Garcia, and] not to enforce any traffic law,” and
contends that the evidence of his identity obtained as a result of the stop should
have been suppressed as the fruit of an unreasonable search. This argument
is foreclosed by our precedent.
       In United States v. Harris, 19 we held that a traffic stop is justified at its
inception if a traffic violation has occurred, regardless of whether the
subjective reason for the stop is one other than the occurrence of the traffic
infraction. 20 The defendant in Harris made a nearly identical “illegal pretext”
argument that “officers had improperly intended to search his truck prior to
the stop.” 21 This court specifically rejected that argument, holding that “[t]he
stop of Harris’s truck, even if pretextual, was justified by Harris’s numerous
traffic violations.” 22 Similarly, the stop of Martinez-Garcia’s vehicle, even if
pretextual, was justified by the fact that he was observed by Officer Byars
speeding ten miles per hour over the posted speed limit. Thus, the district




       19   566 F.3d 422 (5th Cir. 2009).
       20  Harris, 566 F.3d at 434 (“It is well established that ‘[s]o long as a traffic law
infraction that would have objectively justified the stop had taken place, the fact that the
police officer may have made the stop for a reason other than the occurrence of the traffic
infraction is irrelevant for purposes of the Fourth Amendment.’”) (quoting Goodwin v.
Johnson, 132 F.3d 162, 173 (5th Cir.1997)).
       21   Id.
       22   Id. at 435 (emphasis added).
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                                           No. 13-10531
court did not err in denying Martinez-Garcia’s motion to suppress the evidence
obtained from the traffic stop.
                                                  V
         Martinez-Garcia contends that the evidence was insufficient to convict
him. We review claims of insufficient evidence de novo when the defendant
has properly moved for a judgment of acquittal under Federal Rule of Criminal
Procedure 29. 23 “All evidence is reviewed in the light most favorable to the
verdict to determine whether a rational trier of fact could have found that the
evidence established . . . guilt beyond a reasonable doubt.” 24 “All credibility
determinations and reasonable inferences are to be resolved in favor of the
verdict.” 25
         Martinez-Garcia argues that the evidence used to convict him consisted
solely of unverified testimony of cooperating witnesses and testimony from
DEA agents about unsuccessful drug busts for which there was no physical
evidence to tie Martinez-Garcia to any drug transaction. He asserts that
“[b]ecause the government presented the testimony of interested witnesses
without support from physical evidence, the evidence is not sufficient to
convict” him of conspiracy to distribute methamphetamine. This argument
fails.
         In United States v. Thompson, 26 we reiterated that “[a]s long as it is not
factually insubstantial or incredible, the uncorroborated testimony of a co-
conspirator, even one who has chosen to cooperate with the government in
exchange for non-prosecution or leniency, may be constitutionally sufficient


         23   United States v. Harris, 666 F.3d 905, 907 (5th Cir. 2012).
         24   Id.
         25   United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995).
         735 F.3d 291 (5th Cir. 2013), petition for cert. filed, --- U.S.L.W. ---- (U.S. Feb. 19,
         26

2014) (No. 13-8781).
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                                         No. 13-10531
evidence to convict.” 27 Like Martinez-Garcia, the defendant in Thompson was
charged with conspiracy to distribute a controlled substance in violation of
§ 846. 28       The prosecution presented testimony of three co-conspirators
connecting Thompson to the conspiracy through his presence at drug
transactions and the use of his house as a meeting point. 29                        Rejecting
Thompson’s argument that this evidence was insufficient to convict him on the
conspiracy charge, this court explained that Thompson had failed to “point to
any ways in which [the prosecution’s witnesses’] testimony was ‘factually
insubstantial or incredible,’” and concluded therefore that “[t]his evidence is
sufficient: A rational trier of fact could find Thompson was a voluntary
participant in a drug conspiracy.” 30
       Similarly, here Martinez-Garcia presents no argument that the
testimony of Fenton, Gary, or Alonzo was “factually insubstantial or
incredible.” Indeed, he concedes that “Fenton further testified that Appellant
was involved as his supplier [of methamphetamine]” and that “Alonzo testified
. . . that she sold drugs for Johnathan Ruiz and Appellant.” To the extent that
Martinez-Garcia’s contention is that the testimony of Fenton, Gary, and Alonzo
was inherently unreliable because they received benefits in exchange for their
testimony, this argument is foreclosed because “[i]t is well-settled that
credibility determinations are the sole province of the jury.” 31
       Martinez-Garcia’s quarrel with the lack of physical evidence is similarly
not a basis for a determination of insufficiency of the evidence, as “[t]he


       27Thompson, 735 F.3d at 302 (alteration in original) (quoting United States v. Medina,
161 F.3d 867, 872-73 (5th Cir. 1998)).
       28   Id. at 294.
       29   Id. at 301-02.
       30   Id. at 302.
       31   United States v. Davis, 61 F.3d 291, 297 (5th Cir. 1995).
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                                        No. 13-10531
elements of [conspiracy under § 846] may be established by circumstantial
evidence . . . .” 32 Because the Government presented substantial and credible
testimony of co-conspirators, corroborated by circumstantial evidence to show
that Martinez-Garcia had conspired to distribute methamphetamine in
violation of § 846, there was sufficient evidence from which a reasonable juror
could conclude that Martinez-Garcia was guilty beyond a reasonable doubt.
                                              VI
      Martinez-Garcia challenges his sentence of life imprisonment on the
ground that it was substantively unreasonable. We review the substantive
reasonableness of a sentence for abuse of discretion. 33 Because Martinez-
Garcia’s sentence was within the Guidelines range, it is presumptively
reasonable. 34 That presumption may be 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.” 35
      Martinez-Garcia argues that his sentence of life imprisonment is
substantively unreasonable because he did not physically or financially harm
any individual or obstruct justice in the commission of the offense, did not
harm anyone in the commission of his past offense of burglary, and is a “father,
husband, and hardworking member of society.” He asserts that in light of
these facts, which the district court was obligated to consider under 18 U.S.C.
§ 3553(a) in imposing a sentence that is “sufficient, but not greater than
necessary,” a sentence of life imprisonment is “greater than necessary” and



      32   United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
      33   United States v. Alvarado, 691 F.3d 592, 596 (5th Cir. 2012).
      34   Id.
      35   United States v. Brown, 727 F.3d 329, 342 (5th Cir. 2013).
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                                           No. 13-10531
therefore unreasonable given the lesser sentences available within the
Guidelines range.
      We rejected almost identical arguments in United States v. Brown. 36 In
that case, the defendants did “not point to any sentencing factor improperly
omitted from consideration or given inappropriate weight; they assert[ed],
without elaboration, that their sentences were ‘clearly unreasonable’
considering their ‘entire li[ves], background, lack of criminal history,
education, [and] all of the information contained in the PSR.’” 37 We concluded
that because the district court had taken their personal circumstances into
consideration through the § 3553(a) factors in determining their sentence, the
defendants had “give[n] us no reason to disturb the district court’s considered
judgment,” and held that the defendant could not overcome the presumption
of reasonableness. 38
      Like the defendants in Brown, Martinez-Garcia points to nothing in the
court’s reasoning that suggests it gave weight to an impermissible factor or
improperly failed to consider a factor. The district court specified that it had
not “received any information to cause [it] to conclude that the advisory
guideline range [was] an inappropriate sentence in [the] case” and that a
sentence of life imprisonment was “an appropriate sentence and a reasonable
sentence that adequately and appropriately addresses all of the [§ 3553(a)]
factors.” Martinez-Garcia’s argument is little more than a request that this
court reweigh the § 3553(a) factors, which is insufficient to rebut the




      36   727 F.3d 329 (5th Cir. 2013).
      37   Brown, 727 F.3d at 342 (second and third alterations in original).
      38   Id.
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                                          No. 13-10531
presumption of reasonableness. 39 Accordingly, the district court did not abuse
its discretion.
                                      *        *         *
       For the foregoing reasons, Martinez-Garcia’s conviction and sentence are
AFFIRMED.




       39 See Gall v. United States, 552 U.S. 38, 51 (2007) (“The fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is insufficient to
justify reversal of the district court.”); United States v. Padilla-Cortez, 499 F. App’x 391, 392
(5th Cir. 2012) (unpublished) (“[Defendant’s] arguments . . . are essentially a request that
this court reweigh the § 3553(a) factors, which we will not do.”).
                                              15
