     Case: 11-50987     Document: 00511904087         Page: 1     Date Filed: 06/28/2012




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

                                                                            FILED
                                                                           June 28, 2012
                                     No. 11-50987
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE TRINIDAD OROZCO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-1188-4


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Trinidad Orozco pleaded guilty to a single count
of conspiracy to possess with intent to distribute more than five kilograms of
cocaine. The district court imposed a within guidelines sentence of 108 months
of imprisonment. On appeal, Orozco argues that the district court procedurally
erred by failing to grant a reduction in his offense level based on his role in the
offense and that the district court imposed an unreasonable 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50987    Document: 00511904087      Page: 2    Date Filed: 06/28/2012

                                  No. 11-50987

      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a).    United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005).
Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), we must “first ensure
that the district court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Id. If there is no procedural error, the appellate court then
reviews the substantive reasonableness of the sentence under a deferential
abuse of discretion standard. Id.
      Orozco’s primary argument is that the district court failed to assess
correctly his role in the offense and to grant him a minor or minimal participant
reduction under U.S.S.G. § 3B1.2. The defendant has the burden of showing
that he is entitled to the adjustment. United States v. Garcia, 242 F.3d 593, 597
(5th Cir. 2001). We review a district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.
Rodriguez, 602 F.3d 346, 362 (5th Cir. 2010). A factual finding regarding a
defendant’s role will be disturbed only if it is clearly erroneous. United States
v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995). Orozco’s written objection to the
lack of a reduction for his role in the offense was sufficient to preserve the issue
for review. See United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir.
2003).
      Orozco clearly knew he was being paid to participate in a drug-related
conspiracy.    Statements in the PSR indicate that Orozco’s role was not
significantly different than another co-defendant, who also expected to receive
a similar amount of money for his part in the offense. Finally, other than
attempting to distinguish his lack of criminal history from his co-defendants’
criminal history, Orozco failed to demonstrate that he was entitled to the

                                         2
   Case: 11-50987    Document: 00511904087      Page: 3   Date Filed: 06/28/2012

                                  No. 11-50987

reduction. See Garcia, 242 F.3d at 597. The district court did not clearly err in
refusing to grant a reduction for his role in the offense. See Rodriguez, 602 F.3d
at 362. As Orozco has not shown that the guidelines range was improperly
calculated, he has not shown any procedural error. See Gall, 552 U.S. at 51.
      Orozco also contends that his sentence was substantively unreasonable
because it was greater than necessary under § 3553(a).               He correctly
acknowledges that his failure to object to his sentence in the district court
results in plain error review. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). “[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 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).
      The district court heard Orozco’s sentencing arguments, granted an
objection that resulted in a lower guidelines range, and imposed a sentence at
the low end of that range. Other than his arguments regarding a reduction for
his role in the offense, Orozco merely repeats the same arguments for a lesser
sentence that he raised in the district court; thus, he is asking us to reweigh the
district court’s consideration of the § 3553(a) factors, which we decline to do.
“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.” Gall, 552 U.S. at 51. Orozco has not rebutted the presumption
that the sentence is reasonable or established plain error. See United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).
      AFFIRMED.




                                        3
